THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A.  TREATISE 


ON 


THE  LAW  RELATING  TO 


INJUNCTIONS 


By    HOWARD  C.  JOYCE, 

OF  NF-W  YORK   CITY. 


IN    THREE    VOLUMES 
VOL.    I. 


ALBANY,  N.  Y. 

MATTHEW  BENDER  &  COMPANY. 

1909. 


T 

COPYRIGHT,    1909, 

Bt  MATTHEW  BENDER  &  COMPANY. 


PREFACE. 


The  purpose  of  the  author  in  this  work  has  been  to  present  to 
the  profession  a  complete  treatise  upon  the  law  relating  to  injunc- 
tions, stating  and  applying  the  principles  controlling  the  granting 
of  such  relief  in  all  cases  and  fully  covering  the  modern  phases 
of  the  subject. 

Matters  which  are  especially  live  subjects  of  the  day,  such  as 
strikes,  boycotts,  conspiracies,  monopolies,  contracts  in  restraint 
of  trade,  State  and  Municipal  regulation  of  rates,  revocation  of 
licenses  and  franchises,  and  the  powers  and  duties  of  police  of- 
ficials have  been  considered  at  length. 

In  the  statement  of  rules  and  principles  the  author  has 
endeavored  both  to  give  a  citation  in  support  thereof  from  each 
State  so  as  to  furnish  the  lawyer  using  the  work  with  a  citation 
from  his  own  State  if  possible,  and  also  to  illustrate  by  particular 
decisions  the  application  of  such  rules. 

In  the  preparation  of  this  treatise  the  author  has  in  many 
instances  embodied  matter  contained  in  Mr.  Beach's  treatise  upon 
this  subject,  for  which  aid  he  wishes  to  extend  his  thanks  to  the 
publishers. 

Trusting  that  the  work  may  be  of  value  to  the  profession,  it  is 
respectfully  submitted  to  their  consideration. 

HOWARD  C.  JOYCE. 

New  Yokk,  March  1,  1909. 


67S15? 

LAW 


TABLE  OF  CONTENTS 

VOLUME    I 


CHAPTER  I. 

Definition  and  Nature  of  Injunctions. 

Section     1.  Injunctions  defined. 

2.  Injunctions  further  defined  and  described— Their  flexibility. 
2a.  Object  and  purpose  of  writ  or  order. 

3.  Injunctions  as  in  personam— Compared  with  attachments. 

4.  Parties'  agreement  operating  as  injunction. 

5.  Injunctions  as  affected  by  statute. 

6.  Injunction  and  receiver. 

7.  Injunctions  as  related  to  specific  performance. 
8    Injunction  in  aid  of  attachments. 

9.  Injunction   compared  with   mandamus,   certiorari   and  quo  war- 
ranto. 
9a.  Injunction  and  prohibition  compared. 

10.  Injunction  and  damages  in  the  same  action. 

11.  Damages  in  lieu  of  injunction. 

12.  Damages  in  lieu  of  injunction— Lord  Cairn's  Act. 

13.  No  private  injunction  to  protect  public  rights. 
13a.  Same  subject— Rule  illustrated. 

14.  Clean  hands. 

15.  Same  subject— Patent  causes. 

16.  Same  subject— Where  injunction  an  evasion  of  just  dues. 

17.  Imminent  injury  as  ground  of  injunctive  relief. 

18.  Same  subject— The  Tennessee  rule. 

19.  Same  subject— Where  plaintiff  not  harmed. 

20.  Clear  violation  of  plaintiff's  right— Balancing  equities. 

21.  Where  plaintiff's  rights  are  doubtful. 

22.  Same  subject — Patent  causes. 

23.  Same  subjects-Unsettled  questions  of  law. 

24.  Same  subject— Trifling  grievances. 

25.  Balance  of  convenience  in  doubtful  cases. 

26.  Adequacy  of  legal  remedy— General  rule. 

26a.  Adequacy  of  legal  remedy— What  essential  to. 
26b.  Adequacy  of  legal  remedy— Application  of  rule. 

27.  The  same  subject. 

28.  Same  subject— Further  illustrations. 

(vii) 


viii  Table  of  Contents. 

Section  29.  Same  subject — Certiorari  and  appeal. 

30.  Injunction  not  granted  where  mandamus  is  appropriate. 

31.  Where  legal  remedy  inadequate. 

32.  Adequate  remedy  in  Federal  courts. 

33.  Enjoining  trespass  and  nuisance  though  legal  remedy  exists. 

34.  Where  a  party  has  a  remedy  by  his  own  act. 

35.  Irreparable  injury  to  be  threatened — Injunction  to  prevent. 

36.  Irreparable  injury — What  is. 

37.  Rules  illustrated  generally. 

38.  Same  subject — Public  taking  of  private  property. 

39.  Threatened  injury — Must  be  irreparable. 
39a.  Same  subject — Application  of  rule. 
39b.  Same  subject — Abating  liquor  nuisance. 

40.  Same  subject — Exceptions. 

41.  No  injunction  for  past  acts. 

41a.  Same  subject — Application  of  rule. 

42.  Laches  and  acquiescence — General  rule. 
42a.  Laches  and  acquiescence — Rule  illustrated. 

43.  Same  subject — When  laches  no  defense. 

44.  Same  subject — In  England. 

45.  Injunctions  in  foreign  countries. 

46.  Effect  of  injunctions  on  statute  of  limitations. 


CHAPTER  II. 
Jurisdiction. 

Section  47.  Assuming  injunctive  jurisdiction. 

47a.  Same  subject — Where  no  power  to  enforce. 

47b.  Jurisdiction  limited  by  Constitution  or  statute. 

48.  Declining  jurisdiction  where  the  Legislature  should  act. 

49.  Equity  jurisdiction  not  extended  by  combining  law  and  equity. 

50.  Injunctive  jurisdiction  where  property  rights  not  threatened. 

51.  Ousting  of  jurisdiction. 

51a.  Same  subject — Effect  of  completion  of  act  sought  to  be  enjoined. 
51b.  Prohibition    to   prevent   erroneous   exercise   of  jurisdiction   will 
not  lie. 

52.  Objection  to  jurisdiction,  when  to  be  made. 

53.  No  injunctive  jurisdiction  where  controversy  submitted. 

54.  Limited  injunctive  jurisdiction  of  public  officers. 

55.  Same  subject. 

56.  No  State  jurisdiction  of  patent  infringements. 

57.  Peculiar  jurisdiction  of  trusts,  waste,  etc. 

58.  No  injunctive  jurisdiction  of  criminal  matters. 

59.  Same  subject. 

60.  Same   subject — Illegal   ordinance  or  statute. 
60a.  Same  subject — Qualification  of  rule. 

61.  Injunctive  jurisdiction  of  courts  of  last  resort. 

62.  Same  subject. 


Table  of  Contents.  ix 

Section  63.  Of  Supreme  Court  of  New  York. 

64.  Of  Superior  and  City  Courts. 

65.  Of  Circuit  Courts. 

66.  Of  District  Courts. 
66a.  Of  County  Courts. 

67.  Of  Courts  of  Common  Pleas. 

68.  Of  Probate  Courts— Of  Surrogates. 
68a.  Of  court  commissioners. 

68b.  Statutory  provisions  of  a  general  character. 

69.  Conditional  and  auxiliary  jurisdiction. 

70.  Jurisdiction  in  vacation. 

71.  Jurisdiction  at  chambers. 

72.  Trial  court's  jurisdiction  pending  appeal. 

73.  Jurisdiction  of  the  High  Court  of  Justice. 

74.  Jurisdiction  of  Quebec  courts— Of  British  Columbia  eourts. 

75.  Extra-territorial  jurisdiction. 

75a.  Same    subject— Jurisdiction    dependent    on    location    of    subject 
matter. 

76.  Same  subject — Receivers. 

77.  Same  subject — Exceptions. 

77a.  Same   subject — Exceptions   continued. 

78.  Same  subject  illustrated  in  Alabama. 

79.  Same  subject — Interstate  comity. 
'  .              80.  Same  subject — English  chancery. 

81.  Comity  of  New  York  chancery. 

82.  Jurisdiction  of  non-resident's  personalty. 

83.  Non-interference  with  courts  of  concurrent  jurisdiction. 

84.  State  courts  versus  Federal. 

85.  Same  subject — Court  first  acquiring  jurisdiction. 

86.  Federal  comity  towards  State  courts. 

87.  Federal  jurisdiction  independent  ofi  State  laws  and  practice. 

88.  Federal  injunction  of  proceedings  in  State  eourts. 

89.  Same  subject — Where  suits  not  begun  in  State  court. 

90.  Federal   jurisdiction  to  enjoin  national  banks. 

91.  Jurisdiction  of  patent  infringements. 

92.  Exclusive  Federal  jurisdiction  of  equitable  maritime  cases. 

93.  Ancillary  jurisdiction  of  the  Federal  courts. 

94.  Jurisdiction  according  to  value  in  dispute. 

95.  Injunctive  jurisdiction  of  Territorial  courts. 

96.  Jurisdiction  of  perpetual  injunctions. 


CHAPTER  III. 

Classification  and  Form. 

SECTION     97.  Preventive  and  mandatory. 

97a.  Mandatory  injunctions — Rules  as  to  granting  generally. 

98.  Mandatory  injunctions — Requisites  of. 

99.  Same  subject — In  New  Jersey. 


x  Table  of  Contents. 

■  •         '5v     ' 

Section  100.  Same  subject — In  New  York  and  other  States. 

101.  Mandatory  injunctions  more  favored  than  formerly. 

102.  The  effectiveness  of  mandatory  injunctions. 

103.  Relief  by  mandatory  injunction — Illustrations. 

104.  Same  subject — Illustrations  continued. 

105.  Common  and  special  injunctions — Common  abolished. 
105a.  Soecial  injunctions  further  considered. 

106.  Prerogative  writs  of  injunction. 

107.  Perpetual  and  preliminary  injunctions. 

108.  Perpetual  injunctions  further  considered. 

109.  Interlocutory  or  temporary  injunctions. 
109a.  Same  subject — Object  of. 

109b.  Pieliminary  injunctions  further  considered. 

110.  Same  subject. 

110a.  Injunction  by  order  in  New  York. 

111.  Interim  restraining  orders  generally. 

Ilia.  Interim  restraining  orders  in  particular  jurisdictions. 

112.  Invalid  preliminary  injunctions. 

113.  Injunction  against  plaintiff. 

114.  Form  and  contents  of  injunction  order. 

115.  Injunction  order  to  be  specific. 

116.  Setting  and  correcting  form  of  permanent  injunction. 

CHAPTER  IV. 

The     Granting    of     Injunctions;     Application;     Notice; 

See  vice. 

Section  117.  Judicial  discretion  in  respect  to  injunction. 

118.  Sound  discretion  considered. 

119.  Discretion  as  affected  by  statutes. 

120.  No  discretion  in  cases  of  torts. 

121.  Abuse  of  discretion  in  granting  injunctions. 

122.  Discretion  not  to  be  forced  by  mandamus. 

123.  Continuance  of  injunctions. 

124.  Notice  of  application — Necessity  of. 

125.  Same  subject  continued. 

126.  Same  subject — Rule  in  New  York. 

126a.  Same   subject — Where  injunction  operates  to  suspend  general 

business  of  corporation. 
126b.  Same  subject — Statutes  as  to  length  of  time  for  which  notice 

must  be  given. 
126c.  Same  subject — Waiver  of  notice. 
126d.  Same   subject — Qualification  of   rule — Statutes. 

127.  Notice — Perpetual  injunctions. 

128.  Application  on  what  made. 

129.  Same   subject — Federal  practice. 

130.  Motions  for  temporary  injunction. 

131.  New  York  injunctions  formerly  on  petition. 


Table  of  Contents.  xi 

Section  132.  Special  prayer  for  injunction. 

133.  Temporary  injunction  pending  an  action  for  a  permanent. 

134.  Temporary  injunction  for  extrinsic  cause. 

135.  Same  subject. 

136.  Affidavits. 

137.  Conflicting  affidavits,  etc. 

138.  Substitute   for  affidavits. 

139.  Additional  evidence; — secondary  evidence. 

140.  Granting  injunction  before  bill  filed. 

141.  Same  subject. 

142.  Same  subject — Alabama  rule. 

143.  Granting  injunction  on  bill  filed— Chancery  practice. 
143a.  Where  answer  denies  facts  alleged  in  bill. 

144.  Granting  injunction  in  spite  of  answer. 

145.  Verification  of  bill. 

146.  Verification  of  bill  in  New  Jersey. 

147.  Same  subject — Maryland  rule. 

148.  Verification  in  Georgia  and  South  Carolina. 

149.  Verification — Federal    practice. 

150.  Allegations  on  information  and  belief. 

151.  Service  of  injunction. 

151a.  Party  enjoined  out  of  State — Mode  of  service. 

152.  Subpoenas — Service  of. 
152a.  Substituted  service. 

153.  Temporary  injunctions  by  whom  granted. 

154.  Granting  on  Sunday  and  holidays  or  in  vacation. 

155.  Second  injunctions. 

156.  Injunction  against  parties  only — Exception. 

157.  Subsequent  applications — Bar  to. 

CHAPTER  V. 

Injunction  Bond  and  Actions  on  it. 

Section  158.  History  of  injunction  bonds. 

159.  Same  subject  in  England. 
159a.  Object  of  injunction  bond. 

160.  Cases  when  bond  not  required — Discretion  as  to. 

161.  Requiring  bonds — Discretion  as  to. 

162.  Same  subject  in  Maryland. 

163.  Bond  as  condition  precedent  to  injunction. 

164.  Same  subject. 

165.  Where  enforcement  of  judgments  enjoined— In  New  York. 

166.  Same  subject. — In  Iowa. 

167.  Same  subject — In  Arkansas — In  Illinois. 

168.  Same  subject — In  New  Jersey. 

168a.  Bond  having  force  and  effect  of  judgment — Statutes. 

169.  Additional  bond  or  security. 

170.  Construction  of  bond. 


xii  Table  of  Contents. 

Section  171.  Same  subject. 

172.  Construction  of  bond  continued. 

172a.  Necessity  of  compliance  with  statute. 
172b.  Effect  of  errors  and  omissions  in  bond. 

173.  Execution  of  injunction  bond  by  applicant. 

174.  Enforcing  State  bond  in  federal  courts. 

175.  Bond  essential  to  recovery  of  injunction  damages. 

176.  Same  subject. — In  Minnesota,  Kentucky,  Pennsylvania. 

176a.  Action  on  bond  as  effected  by  malice — Want  of  probable  cause. 

177.  Action  for  damages  on  bond — When  accrues. 
177a.  Same  subject — Evidence — Burden  of  proof. 

178.  Same  subject — Evidence  of  damage. 

179.  Breach  of  condition  of  bond. 

180.  Breach  of  bond  further  considered. 

181.  Same  subject — In  Alabama  and  Ohio. 

182.  Same  subject — In  Kentucky,  California,  Iowa  and  Maine. 

183.  Venue — Action  pending  an  appeal. 

184.  Parties  to  actions  on  injunction  bonds — Nominal  parties. 
184a.  Parties  plaintiff  continued. 

185.  Parties  plaintiff  concluded. 

186.  Requisites  of  bond  as  basis  of  action. 

187.  Complaint  on  injunction  bond — Demurrer. 

188.  Same  subject. 

189.  Allegations  of  special  damage. 
189a.  Effect  of  plea  or  answer. 
189b.  Defenses — Generally. 

189c.  Defenses — Want  of  jurisdiction. 
189d.  Presumptions. 


CHAPTER  VI. 

Damages. 

Section  190.  Only  actual  damages  recoverable  on  bond. 

191.  Only  Damages  caused  by  injunction. 
191a.  Same   subject — Remote  damages. 
191b.  Nominal  damages. 

191c.  Amount  recoverable  on  bond  limited  by  penalty  of. 

192.  Enjoinee's  duty  to  avert  damages. 

193.  Damages  to  stockholders 

194.  Wages  and  current  expenses  as  damages. 

195.  Depreciation  of  value  as  damages. 

196.  Interest  when  allowed  as  damages. 

197.  Rents  as  damages — Injunction  against  asserting  ownership. 

198.  Loss  of  profits  as  damages. 

199.  Loss  of  profits  sometimes  allowed. 

200.  Loss  of  time  and  anxiety — Damnum  absque  injuria. 

201.  Exemplary  damages  not  recoverable. 

202.  Damages  accruing  after  final  decree. 


Table  of  Contents.  xiii 

Section  203.  Counsel  fee  on  dissolusion  of  injunction. 

204.  Counsel  fees — Recovery  of  continued. 

205.  Counsel  fees  where  injunction  only  relief   sought. 

206.  Counsel  fees  where  injunction  ancillary  to  principal  relief. 

207.  Counsel  fees   incurred  generally  in  case. 

208.  Counsel  fees — Where   not   paid. 

209.  Counsel  fees — Assignment   to  attorney  of   claim  for. 

210.  Jurisdictions  where  counsel  fees  not  recoverable. 

210a.  Counsel  fees — Where  federal   bond  sued  in  State  court. 
210b.  Where  injunction   expenses  blended  with  those  of  suit. 

211.  Costs  of  reference  as  damages. 
211a.  Asessment  of  damages — Generally. 

212.  Assessing  damages — In  Kentucky.  Alabama.   Iowa,  Mississippi, 

Missouri. 

213.  In  Maine   and  Minnesota. 

214.  Assessment  of  damages  in  Illinois — Suggestion  when  required. 

215.  Continued  in   Illinois. 

216.  In  New  York  and  New  Hampshire. 

217.  In  Louisiana. 

2 IS.  Motion    to    assess    damages — Joinder    of    movants — Apportion- 
ment. 

219.  Federal  practice  as  to  determining  damages. 

220.  English  inquiry  as  to  damages. 

221.  Assessing  damages  on  partial  dissolution  of  injunction. 

222.  Reference  to  ascertain  damages. 

223.  Same  subject. 

224.  Reference   in  Wisconsin. 

225.  Review  and  correction  of  referee's  report. 

226.  Reference  in  case  of  appeal. 
226a.  Pleadings. 

226b.  Evidence  and  burden  of  proof. 
226c.  When  prescription  begins  to  run. 


CHAPTER  VII. 

Liability  of  Sureties. 

Section  227.  Sureties'  liability  is  stricti  juris. 

227a.  Same   subject — Application   of   rule. 

228.  Same  subject  continued. 

229.  Same  subject — Bond  conditioned  to  pay  damages  sustained. 

230.  Enlarging  sureties'  liability  by  the  parties. 

231.  Extent  of  sureties'   liability. 

232.  Sureties'  liability  for  defendant's  loss  of  profits,  etc. 
223.  Sureties'  liability  on   joint  bonds. 

234.  Bonds  as  joint  or  several. 

235.  Sureties  when  bound  by  decree  though  not  parties. 

236.  Suing   principal   before   surety. 

237.  Release  of  surety — Defenses. 


xiv  Table  of  Contents. 

Section  23S.  Sureties'  obligations  construed. 

239.  Same  subject. 

240.  Awarding  damages  against  sureties  in  original  action. 

241.  Same  subject — In  Arkansas. 

242.  Same  subject — In   Louisiana. 

243.  Same  subject — In  Louisiana   continued. 

244.  Same  subject — In  New  York. 

245.  Same  subject — In  South  Carolina,  Missouri,  Texas. 


CHAPTER  VIII. 

Violations  and  Punishment  of. 

Section  246.  Void  injunction  need  not  be  obeyed — If  collusive. 

247.  Must  be  obeyed,  though  irregular. 

248.  Violation  though  no  service — Knowledge  enough. 
248a.  Same  subject — Application  of  rule. 

249.  Excuse  of  violation. 

250.  Same  subject  continued — Effect  of  dissolution. 
250a.  Same  subject — Effect  of  modification  of  injunction. 

251.  What  constitutes  violation. 

252.  Same  subject — Injunction  to   protect  right  of  way. 

253.  Same  subject — Prior  acts — Changed  situation. 

254.  Same  subject — Illustrations. 
254a.  Where  injunction  conditional. 

255.  Violation  of  patent  injunctions. 

256.  Violation  by  parties — Generally. 
256a.  Violation  by  complainant. 
256b.  Violation  by  one  not  a  party. 

257.  Violation  by  agents  and  servants. 

258.  Same  subject — Violation  by  attorneys. 

259.  Violation  excused. 

260.  Obeying  injunction  as  far  as  clear — Changed  situation. 

261.  Violation  after  determined  by  scope  of  terms. 

262.  Contempt  proceedings  to  punish  violations. 

263.  Same  subject  continued. 

264.  Collateral  attack  of  injunction  in  contempt  proceedings. 

265.  Punishment  in  Iowa. 

266.  Who  may  institute  contempt  proceedings — Estoppel. 

267.  Delay   in    punishing  for  contempt. 

268.  Who   punishable   for  contempt. 

269.  Landlord  and  tenant — Husband  and  wife. 

270.  Party  punishable  on  notice. 
270a.     Facts  in  mitigation. 

271.  Motive,  intent  or  belief  as  excuse. 

272.  Disclaimer  of  contempt  as  excuse  or  in  mitigation. 

273.  Advice  of  counsel  as  an  excuse. 
-7 1.  Contempt  .of  receiver. 

B75.  Punishing  contempl    in  supplementary  proceedings. 


Table  of  Contents.  xv 

SECTION  275a.  Violations  by  corporations — Officers  and  employees. 

276.  Contempt  proceedings  against  corporations — Affidavits. 
276a.  Injunction  against  partnership; — Violations  of. 

277.  Who  can  punish  violations. 

278.  Punishment  in  Federal  courts. 

279.  In  England. 

279a.  Payment  of  damages. 

280.  Indemnity  fine  for  contempt — New  York. 
280a.  Same  subject  continued. 

281.  Punishing  contempt  by  annulling  what  has  been  done. 
281a.  Compelling  restoration  of  status. 

282.  Party  in  contempt  not  entitled  to  jury. 

283.  Violation   as  contempt  pending  appeal. 
283a.  Same  subject  continued. 

284.  Appeals  from  orders  in  contempt  proceedings. 
284a.  Judgment — Recital  of  facts  in. 

CHAPTER  IX. 

Dissolution. 

Section  285.  General  rule. 

286.  When  injunction  will  be  retained. 

287.  Same  subject. 

288.  Dissolution  where  the  sole   relief  is  injunctive. 

289.  Dissolution   where   court  has   been   imposed  on. 

290.  Court's   discretion  as  to  dissolution — Limit  of. 

291.  Discretion  further  considered  and  illustrated. 

291a.  Dissolution — Where   party  entitled   to  another   injunction. 

292.  Amending  defects  on  hearing  motion  to  dissolve. 

293.  Dissolution   for  irregularity — Alabama  rule. 
293a.  Fatal  defects  or  irregularities. 

293b.  Vagueness  as  ground  for  dissolution. 

294.  Dissolution    where   no   bond    is   given — Defective   or    insufficient 

bond. 

295.  Dissolution  on  defendant's  bond. 

296.  Same  subject — In  Louisiana. 

297.  Dissolution  for  laches. 

298.  Dissolution  where  subpoena  not  served. 

299.  Motion  to  dissolve  before  answer. 

300.  Same  subject. 

301.  Rebuttal  of  answer  on  motion   to  dissolve. 

302.  Affidavits  on  motion  to  dissolve. 

303.  Dissolution  on  papers  of  original  application. 

304.  Answer  as  equivalent  onlv  to  an  affidavit — Counter  affidavits, 

305.  Dissolution  on  denials  of  answer. 

306.  Dissolution  on  defendant's  denial  of  equities  of  bill. 
306a.  Same  subject  continued. 

307.  Same  subject — Discretion  of  court. 


XVI 


Table  or  Contents. 


Sectiox  30S.  Same  subject. 

309.  Answers  not  responsive. 

310.  Same  subject — Exceptions. 

311.  Dissolving  an  answer  after  exceptions  to  it. 

312.  Answers  not  denying  admit — Evasive  answers. 

313.  Answers  admitting  and  then  avoiding  by  new  defense. 
.'.14.  Qualified  answers — On   information   and   belief. 

315.  Dissolution  on  answer. 

316.  Dissolution  on  answer  though  bill  waive  oath. 
'!  1  7.  Evidence  admissible  on  motion  to  dissolve. 
318.  Dissolution  of  injunction  on  bill  of  discovery. 

:;]!).  Dissolving  injunction  on  ground  of  adequate  legal  remedy. 

320.  Motion   to  dissolve   for  want  of  jurisdiction. 

321.  Dismissing  liill  on  dissolution  of  injunction. 

322.  Same   subject — Iii  Texas. 

323.  Dissolution  where  several  defendants. 

324.  Sam<>  subject — Qualifications  and  exceptions. 

325.  Same  subject. 

326.  Same  subject. 

326a.  Where   additional   parties  are  brought  in. 

327.  Dissolution  oi  common  and  special  injunctions. 

328.  Where  enforcement  of  judgment  stayed. 

329.  Same  subject. 

330.  Dissolution    by   implication — By  sustaining   demurrer. 
330a.  Same  subject — Injunction  in  force  until  a  certain  time. 
330b.  Same  subject — Dismissal  of  bill — Effect  of  decree. 
330c.   Same  subject  continued. 

331.  Dissolution  of  injunctions  affecting  realty. 

::.;•_'.   Dissolution  of  injunction  granted  on  charges  of  fraud. 

333.  Dissolution  on  removal  of  cause  to  Federal  court. 

334.  Dissolution  not  affected  by  mere  appeal. 

335.  Notice  of  motion   to  dissolve — General  rule. 

336.  Same  subject. 

337.  Who  may  apply  for  dissolution. 

337a.   Same  subject — Where  defendant    in  contempt. 
337b.   Same  subject   continued. 

338.  Dissolution   by   whom  granted. 

339.  Dissolution  at   chambers — In  vacation — Notice. 

340.  Abatement  of  injunction  on  plaintiff's  death. 

341.  Abatement  by  death  of  defendant. 
341a  Continuance  of  motion  to  dissolve. 

342.  Second   motion   to  dissolve. 

343     lie-lit ut ion   by   plaintiff  on   dissolution. 
344.   Reinstatement  on  dissolution. 


Table  of  Contents.  rvii 

CHAPTER  X. 

Paeties. 

Section  345.  Parties  in  interest — Generally. 

346.  Parties  in  interest — Bringing  in — General  rule. 
346a.  Bringing  in   of   additional   parties — Amendments. 

347.  Proper  and  necessary  parties — Who  are. 
34S.  Same  subject — Parties  defendant. 

348a.  Same  subject  continued. 

349.  Standing  as  party  through  injunction. 

350.  United  States  as  party. 

351.  State  as  party — Relators. 

352.  Same  subject. 

353.  Same  subject — Nuisances. 

354.  Cities  and  citizens. 

355.  Towns  as  parties. 

356.  Same   subject — Abutting  owners. 

357.  Attorney-general  as  plaintiff. 

358.  Corporations  as  parties. 

359.  Trustees — Receivers. 

360.  Sureties — Principals — Administrators. 

361.  Taxpayers  as  plaintiffs. 
361a.  Same  subject  continued. 

362.  Joinder  of  plaintiffs — Life  tenants. 

362a.  Joinder  of  plaintiffs — Life  tenants — Tenants  in  common. 

363.  Joinder  of  plaintiffs — Abutting  owners,  etc. 

364.  Misjoinder  of  plaintiffs. 

365.  One  or  more  for  all. 

366.  Injunctions  against  proceedings  at  law. 

367.  Same   subject — Joining  officers. 
367a.  Joining  officers  continued. 

368.  Joinder  of  defendants — Nuisance. 

369.  Same  subject — Bills  of  peace. 

370.  Same  subject — Frauds. 

371.  Joinder  of  patent  owner  as  defendant  where  licensee  sues. 

372.  Joinder  of  plaintiffs  at  law  as  defendants  in  equity. 

373.  Defect  of  parties  defendant. 

374.  Dismissal  for  want  of  necessary  parties. 


CHAPTER  XI. 

Appeals. 

Section  375.  Useless  appeals. 

376.  Restricting  and  protecting  appeals. 

377.  Who  may  appeal. 

378.  Injunction  order  operating  as  final  decree. 

379.  Appeals  in  Alabama. 

380.  In  Arizona — Arkansas. 

b 


xviii  Table  of  Contents. 

Section  381.  In  California,  Colorado,  Dakota. 

382.  In  Delaware,  District  of  Columbia  and  Florida. 

383.  In  Georgia. 

384.  In  Illinois. 

385.  In  Indiana. 

385a.  In  Iowa — Kansas. 
385b.  In  Kentucky. 
380.  In  Louisiana. 

387.  In  Maryland. 
387a.  In  Michigan. 
387b.  In  Minnesota. 
387c.  In  Missouri. 

388.  In  Montana. 
388a.  In  Nebraska. 

389.  In  New  Jersey. 

390.  In  New  York. 

390a.  In  North  Carolina — In  North  Dakota. 

391.  In     Ohio,  Oklahoma,  Pennsylvania. 

392.  In  South  Carolina. 
392a.  In  Texas— Utah. 

393.  In  Virginia. 
393a.  In  Washington. 

394.  In  Wisconsin. 

395.  Appealable  decrees  in  Federal  courts. 

396.  Appeals  to  Circuit  Court  of  Appeals. 

397.  Same  subject — Assignment  of  errors. 

398.  Reversals  by  the  Federal  Circuit  Court  of  Appeals. 

399.  Joinder  of  joint  defendants  in  writ  of  error — Federal  rule. 

400.  Effect  of  appeal — Federal  rule — Stay  pending  appeal. 

401.  In  Alabama — Arkansas. 
401a.  In  California. 

402.  In  Florida. 

402a.  In  Georgia — Illinois. 

402b.  In  Iowa. 

402c.  In  Louisiana. 

402d.  In  Michigan — Minnesota — Montana. 

403.  In  New  Jersey. 

404.  In  New  Jersey,   continued. 

405.  In  New  York. 

400.  In  North  Carolina— Ohio. 

406a.  In  Texas. 

400b.  In  Washington. 

406c.  In  West  Virginia — Wisconsin. 

406d.   In   England. 

407.  Appeals  from  decree  dismissing  bill. 

408.  Objections  barred  on  appeals. 

409.  Appeal   record. 

410.  Conclusiveness  of  findings. 

410a.  Scope  of  review  by  Appellate  Court. 

411.  Appeal  or  mandamus. 


Table  of  Contents.  xrx 

CHAPTER  XII. 
Injunctions  Against  Feaud. 

8BOTIOH  412.  Enjoining  frauds  upon  the  law. 

413.  Equity  jurisdiction  of  fraud. 

414.  Burden  of  proof  on  complainant. 

415.  Presumption  of  fraud. 

416.  Silence  as  fraud — suppressio  veri. 

417.  Participators  in  fraud  enjoined. 

418.  Enjoining  proceedings  at  law. 
418a.  Same  subject  continued. 

419.  No  injunction  if  remedy  at  law. 

420.  Complainant  must  show  injury. 

421.  Contracts  procured  by  fraud. 
421a.  Same   subject — Rule   illustrated. 
421b.  Same  subject — Bonds. 

422.  Corporate  fraud. 

423.  Breach  of  Trust  as  Fraud. 
423a.  Fraud  by  administrator. 

424.  Injunctive  relief  lost  by  laches. 

425.  Dissolution  on  answer  where  bill  charges  fraud. 

CHAPTER  XIII. 

Relating  to  Contracts. 

Wmcmo-a  426.  Contracts  against  public  policy. 

427.  Ultra  vires  contract  not  to  be  enforced  by  injunction. 

428.  Injury  to  be  threatened. 

429.  Inadequacy  of  legal  remedy  to  be  shown. 

430.  Same  subject. 

430a.  Effect  of  provision  for  liquidated  damages. 

431.  Complainant  must  have  performed — Clean  hands. 

432.  Determining  right  to  enjoin  contract  after  its  expiration. 

433.  Conditional  and  incomplete  contracts. 

434.  Same  subject — Railroad  contracts. 

435.  Unfair  and  involved  contracts. 

436.  Contracts  conferring  exclusive  rights. 

437.  Same  subject. 

437a.  Same  subject — Cas  contracts  with  municipality. 
437b.  Gas  contracts — Generally — Electricity. 

438.  Coal  mine  contracts. 

439.  Grants  of  easements. 
439a.  Contract  to  supply  water. 

440.  Enjoining  assignee  of  contract — Tenant. 
440a.  Against  one  not  party  to  a  contraet. 

441.  Taxpayers'  actions  to  restrain  or  enforce  contracts. 


XX 


Table  of  Contents. 


Section  442.  Same  subject. 

443.  Injunctions  in  aid  of  specific  performance. 

444.  Same  subject— When  injunction  lies. 

445.  Same  subject — When  contract   uncertain. 

446.  Exceptions  to  general  rule — Railroad  contracts. 

447.  Specific  performance  of  real  contracts — Discretion. 

448.  When  mutuality  is  wanting. 

449.  Contracts  affecting  the  public. 

450.  Enforcing  parol  agreement  to  devise. 

451.  Enforcing  implied  contracts  by  injunction — Trade  secrets. 

452.  Enforcing  contracts  for  personal  service. 

452a.  Enforcing  contracts  for  personal  service — Actors. 

453.  Same  subject— BaseLall  players. 

454.  Same  subject — Acrooats. 

455.  Same  subject — Insurance  agents. 
45G.  Same  subject — Author  and  dramatist. 
45Ca.  Partners. 

457.  Enforcing  negative    covenants — Implication   of. 

458.  Enforcing  trusts  by  injunctions. 

459.  Usurious  contracts. 

460.  Gaming  contracts. 


CHAPTER  XIV. 

CONTEACTS  IN   RESTRAINT   OF   TKADE. 

Section  461.  General  considerations  of  policy. 
161a.  Object  of  anti-trust  statutes. 

402.  Reasonableness  and  not  motive  the  test  of  validity. 
402a.  As  between  employer  and  employee — Generally. 
463.  The  modern  doctrine. 

.  Decisions — Alabama — California. 
b.   Decisions   in   Illinois — Indiana — Maine. 
46  \.  Decisions — Massachusetts. 

.    Massachusetts  decisions  continued. 
..  Decisions — Michigan. 
167.   Decisions-   New  .Jersey. 
Same  subject. 
Decisions — New  York. 
Decisions — Pennsylvania — Texas. 
Federal  rule. 
I)    i  tons— England — Canada. 
of  -/""'I  will. 
•171.   As  to  unique  manufactures. 

Devisible  contracts  restraining  trade. 
Adequai  ideration  not  material. 

I'm., I    restrictive  agreements. 
.    What   constitutes  violation. 
173b    Agreements— Dissolution  of  partnership. 


Table  of  Contents.  xs 

Section  it'6e.  Injunction  against  third  party. 
473d.  Agreement  not  to  use  name. 
473e.  Effect  of  provision  for  liquidated  damages. 
473f.  Power  of  court  to  award  damages. 
473g.  Time  of  bringing  action  to  enjoin. 
473h.  Sufficiency  of  complaint. 

CHAPTER  XV. 

Relating  to  Restrictive  Covenants. 

Section  474.  Enforcing  restrictive  covenants  by  injunction — Change  of  locus. 

475.  Though  covenant  does  not  run  with  land. 

476.  Form  of  covenant  not  essential. 

477.  Though  covenant  not  in  writing. 

478.  How  statute  of  frauds  affects  oral  covenants. 

479.  As  between  successors  to  title. 

480.  Restrictions  as  to  buildings — Though  no  damage. 

481.  Covenant  against  tenement  houses — Dwellings  only. 
481a.  Restrictions  as  to  use  of  premises. 

4S2.  Covenant  not  to  sell  liquors. 

483.  Enjoining  vendor  from  breach  of  covenants. 

4S3a.  Same  subject — Tract  of  land  divided  into  lots. 

4S4.  Lessees'  covenants. 

485.  Same  subject. 

456.  Sub-lessees. 

457.  Enjoining  lessor  from  breach  of  covenants. 

488.  Waiver   of  right  to  enjoin  breach — Acquiescence. 

488a.  Same  subject — Where  complainant  has  violated  restriction. 

489.  Vague  and  uncertain  general  covenants. 
489a.  Need  not  be  substantial  injury. 

490.  Present  and  reversionary  interests. 

491.  Penalty   and  liquidated    damages. 

492.  Same   subject    illustrated. 

493.  Same   subject — Construction  of  covenant. 

CHAPTER  XVI. 

Relating  to  Bonds  and  Kotes. 

Section  494.  As  to  instrument  valid  on  its  face. 

495.  Enjoining  collection  or  transfer  for  fraud. 

496.  Same  subject. 

497.  Enjoining  transfer  of  note. 

498.  Same  subject. 

498a.  Same   subject — Adequate   remedy   at   law. 

499.  Enjoining  action  on  note  obtained  by  fraud. 

500.  Enjoining  action  on  note  for  failure  of  consideration. 

501.  Set  off — Insolvency. 

502.  Enjoining  defense  of  coverture  to  wife's  note. 

503.  As  against  subsequent  holder. 


xxii  Table  of  Contents. 

CHAPTER  XVII. 
Relating  to  Strikes,  Boycotts  and  Monopolies. 

Section  504.  Enjoining  strikers  from  using  force,  threats  or  intimidation. 
504a.  What  constitutes  intimidation. 
504b.  Picketing  by  strikers. 
504c.  Rights  of  employees  in  respect  to  striking. 

505.  Mere  enticement  or  persuasion  of  workers  not  enjoined. 
505a.  Interference  with  access  to  premises. 

506.  What  trade  combinations  not  enjoined. 

507.  Lawful  trade  combinations. 
507a.  Conspiracy  generally. 
507b.  Conspiracy  continued. 
507c.  Boycotts  generally. 

508.  Restraining  boycott  of  newspapers. 

508a.  Railroad    strikes    affecting    interstate    commerce    and    mails- 
Right  of  national  government. 

509.  Railroad  boycotts — Violating  Interstate  Commerce  Act. 

510.  Same  subject. 

511.  Enjoining  trade  libels. 
511a.  Same   subject — Circulars. 

512.  In  case  of  trespass. 

513.  Restraining  monopolies. 

513a.  Same  subject — Northern  Securities  Co.  v.  United  States. 

514.  Protecting   monopolies    by    injunction. 

515.  Monopolies — Restrain  of  interstate  commerce. 
510.  Same  subject  continued. 

517.  Commercial  trusts — Insurance  combinations. 
517a.  Who  bound  by  injunction — Violation  of. 

CHAPTER  XVIII. 

Relating  to  Multiplicity  of  Suits. 

Section  518.  Bills  of  peace. 

518a.  What  constitutes  multiplicity. 

519.  Bills  of  peace  by  grantees  from  common  grantor. 

520.  Prerequisites  to  injunctive  relief. 

520a.  Same  subject — Necessity  of  establishing  right  at  law. 
520b.  Must  lie  community  of  interest. 
520c.  Where  actions  can  be  consolidated. 

521.  Actions  in  ejectment. 

522.  Same  subject. 

523.  In    cases    of    repeated    trespass. 

524.  Same  subject. 

■>!'>.  Same  subject — General  rule  modified. 

626.  \~.  to  trespasses  under  unconstitutional  statute. 

527.  As  between  claimants  of  a  common  fund. 

528.  Same  subject. 


Table  of  Contents.  xxin 

Section  529.  As  to  victims  of  the  same  fraud. 

530.  In  case  of  bonds  fraudulently  guaranteed. 

531.  Cases  of  void  ordinance  and  tax. 

532.  Same   subject. 

533.  Where  several  lot  owners   are  illegally  assessed. 

534.  Protection  of   franchises. 

535.  Patent  infringement  suits. 

536.  Where  carrier  collects  insurance  lor  numerous  owners. 

537.  Enjoining  pending  actions  in  same  and  other  courts. 

538.  Where  different  creditors  are  interested. 

539.  Different    creditors'    actions    not    enjoined. 

539a.  Where  statute  provides  mode  of  procedure— Attachment  suite. 

540.  Where  instruments  held  by  independent  parties. 

541.  In  cases  of  interpleader. 

542.  In  cases  of  nuisance  and  waste. 

543.  Where  many  are  injured  by  same  negligence. 

544.  Enjoining  some  of  many  suits. 


CHAPTER  XIX. 

Staying  Actions  and  Suits. 

SECTION  544a.  Jurisdiction  to  stay  actions  generally. 
544b.  Same  subject — Limitation  on  power. 

545.  Parties  not  court  restrained. 

546.  Court's   action   not   ground   for   injunction. 
546a.  Party  must  come  with  clean  hands. 

547.  In  cases  of  fraud— Malice. 

548.  Same   subject — Accident. 

549.  Action  enjoined  on  ground  of  mistake. 

550.  Enjoining  actions  on  fraudulent  instruments,  etc. 

551.  Enjoining  actions  on  notes. 

552.  Action  at  law  not  enjoined  at  instance  of  third  persons. 

553.  Statutory  requisites — Jurisdiction — Damages. 

554.  Action  at  law  not  enjoined  unless  shown  to  be  necessary. 

555.  No  injunction  where  there   is  remedy  by  appeal. 

556.  Same  subject — Where  no  jurisdiction. 

557.  No   injunction  where   remedy  by  certiorari. 

558.  The  effect  of  enjoining  action  at  law. 

558a.  To  protect  persons  acting  under  orders  of  court. 

559.  Enjoining  actions  against  receivers. 

560.  As  to  arbitrators  and  awards. 

561.  As  against  garnishees. 

562.  Protecting  surety   where  creditor   has  collaterals. 

563.  Enjoining  attachments  of  property  of  insolvent. 

564.  Interpleader  and  injunction. 

565.  Same  subject. 

566.  Enjoining  action  at  law  in  case  of  set-off. 

567.  Enjoining  action  where  creditor  agreed  to  release  claim. 


rxiv  Table  of  Contents. 

Section  568.  Same  subject. 

569.  Actions  barred  by  statute  of  limitations. 

570.  Same  subject. 

571.  In  cases  of  res  acljudicata. 

572.  Same  subject — Equitable  estoppels. 

573.  Restraining  the  enforcement  of  void  ordinances. 

574.  Criminal  proceedings  not  enjoined. 

575.  Enjoining  fraudulent  defenses. 

576.  Same  subject — Enjoining  married  woman. 
576a.  Where  adequate  remedy  at  law. 

577.  Defensible  action  at  law  not  enjoined. 

578.  Same  subject — Court's   discretion. 

579.  Same  subject — Summary   proceedings. 
5S0.  Same  subject — Mandamus  proceedings. 

581.  Enjoining  condemnation  proceedings. 

582.  Same  subject — Where  injunction  proper. 

583.  Enjoining  defensible  actions  at  law — Qualification  of  rule. 

584.  Partition  suits. 

585.  Same   subject — Concurrent  jurisdiction. 

586.  Enjoining  action  of  ejectment — Reforming  deed — Where  vested 

remainder. 

587.  Enjoining  ejectment  of  a  possessor  under  contract  of  sale. 

588.  Ejectment  of  tenant  when  enjoined. 

589.  Restraining  action  in  ejectment  for  laches. 

590.  When  ejectment  not  enjoined  for  mistake. 

591.  When  action  of  trespass  will  not  be  enjoined. 

592.  Action  for  forcible  entry — Rules  as  to  enjoining. 

593.  Enjoining  foreclosure  of  mortgage. 

594.  Same   subject — Set-off  against  mortgage. 

595.  Enjoining  action  at  law  by  mortgagee  after  mortgage  debt  is 

paid. 

596.  Action  at  law  for  breach  of  covenants  in  deed. 

597.  Priority  of  suits. 

598.  Same  subject. 

599.  Where  jurisdiction  is  concurrent. 

600.  Federal   injunctions  against  proceedings  in  State  courts. 

601.  Same    subjects — Enjoining   administrators. 

601a.  Injunctions    in    State    courts    against    proceedings    in    Federal 
courts. 

602.  Enjoining  further  proceedings  in  State  court  in  case  of  removal. 
602a.  Where  tribunal  has  exclusive  jurisdiction. 

603.  Enjoining  equity  action  in  same  court. 

604.  Same  subject. 

605.  Action  not  enjoined  because  of  foreign  suit. 
600.  Enjoining   proceedings   in   another   State. 

606a.  Same  subject— Suit  in  one  State  to  evade  laws  of  another  State. 
606b.  Enjoining  appeals. 
007.  In  cases  of  usury. 


Table  of  Contents.  xxv 

CHAPTER  XX. 

To  Aid  Otheb  Remedies. 

Section  608.  The   auxiliary  usefulness  of  injunctions. 

609.  In  aid  of  execution. 

610.  Same    subject — Under    inherent   equity    powers. 

611.  In  aid  of  receivers. 

612.  To  aid  writ  of  possession. 

613.  In  aid  of  assignments  for  benefit  of  creditors. 

614.  In  aid  of  relief  against  usury. 

CHAPTER  XXI. 

Against  Judgments;  General  Considerations. 

Section  615.  General  rule. 

616.  Amount  due  must  be  paid  or  tendered. 

617.  No  injunction  where  remedy  at  law — Appeal — Certiorari. 
617a.  Same  subject  continued. 

618.  Judgment  not  enjoined  if  reviewable. 

619.  Set-offs. 

620.  Cases  of  set-off  continued. 

621.  Enjoining  judgment  founded  on  perjury. 

622.  Enjoining  judgment  on  bond  given  to  suppress  forgery. 

623.  Execution   for  costs   and  interest   thereon. 

624.  Restraining  levy  to  extort  costs. 

625.  Enjoining  execution  where  judgment  has  been  paid. 

626.  Same  subject. 

627.  Same  subject — Constructive  payment. 

628.  Enjoining   judgment   for   alimony. 

629.  Enjoining  judgment  for  usury. 

630.  Same  subject — Legal  interest  to  be  paid  or  tendered. 

631.  Enjoining  judgment  when  summons  not  served. 

632.  Same  subject. 

633.  Same  subject  continued. 

634.  Enjoining  judgment  if  summons  served  on  Sunday. 

635.  Judgment  without  notice  of  hearing — Defective  summons. 

636.  Enjoining  judgment  for  irregularities. 

637.  Enjoining  void  judgments. 

638.  Judgments  void  for  want  of  jurisdiction. 

639.  Default  judgments. 

640.  Default  through  neglect. 

641.  Same  subject — In  Mississippi  and  Texas. 

642.  Where  default  judgment  only  irregular — Where  void. 

643.  Enjoining  confessed  judgments. 

644.  Same  subject. 

645.  Chancery    jurisdiction    over    judgments    at    law. 

646.  Same  subject — In  other  States. 


xxvi  Table  of  Contents. 

Section  647.  Same  subject  continued. 

648.  Statutory  jurisdiction — California,  etc. 

649.  Same   subject — Indiana,   Kentucky,   etc. 

650.  Jurisdiction  to  enjoin  Federal  judgments. 

651.  Enjoining  process  as  between  State  and  Federal  eourts. 

652.  Parties. 

653.  Parties  continued. 

654.  Defect    of    parties — Effect    of. 

655.  Must  be  judgment  or  lien  creditors. 

656.  Same    subject — Preferred    liens. 

657.  Enjoining  judgment  barred  by  laches. 

658.  Sureties'    suit    to    enjoin    judgment. 

659.  Same  subject. 

660.  Enjoining  arbitrators'  awards. 

661.  When  bankrupt  may  enjoin  execution. 

662.  To  prevent  multiplicity  of  suits. 

663.  Preliminary  injunctions — Requisites. 

664.  Refunding  bond. 

665.  Requisites  of  bill  to  enjoin  judgment,  etc. — Demurrer. 

666.  Multifariousness. 

667.  Staying  injunction  judgment  by  appeal. 

668.  Release  of  errors  by  enjoining  judgment. 

669.  Effect  of  enjoining  all  proceedings. 

670.  Effect  of  enjoining  execution  on  Statute  of  Limitation*. 

671.  Miscellaneous  cases. 


CHAPTER  XXII. 

Against  Judgments;  Defenses  at  Law. 

Section  671a.  Enjoining  judgment — Defense  available  at  law — General  rule. 
671b.  Same  subject  continued. 

672.  Enjoining  judgment  where  defense  not  available  at  law. 

673.  Judgments  enjoined  only  on  equitable  grounds. 

674.  Equitable  defense  as  ground  for  injunction. 

675.  Bills  for  new  trials. 

676.  Same  subject — New  evidence. 

677.  Defense  essential   though  judgment  erroneous. 

678.  Same  subject — Meritorious  defense. 

679.  Judgment  not  enjoined  where  defense  has  been  tried  at  law. 

680.  Same  subject. 

681.  Facts  showing  defense  must  be  pleaded. 

682.  Diligence  in  learning  of  and  making  defense. 

683.  Negligence  as  bar  to  injunction. 

684.  Where  defendant  was  ignorant  of  defense  and  not  negligent. 

685.  Judgment  not  enjoined  where  defendant's  attorney  negligent. 

686.  Injunction  barred  by  defendant's  negligence. 


Table  of  Contents.  xrvii 

VOLUME  II. 


CHAPTER  XXIII. 

Against  Judgments  Resulting  from  Feaud,  Mistake,  Acci- 
dent. 

■    ..    .'/:'.S 
Section  687.  Enjoining  fraudulent  judgments. 

688.  Same  subject. 

689.  Enjoining  judgments  fraudulently  altered — Foreign  judgment. 

690.  Fraudulent   promise   and  compromise. 

691.  Enjoining  judgment  entered   in   violation   of  agreement. 

692.  Same  subject. 

693.  Enjoining  collection  of  fraudulent  judgment  for  costs. 

694.  The  fraud  must  be  in  the  procurement  of  the  judgment. 

695.  Facts  of  fraud  essential — Inferences  insufficient. 

696.  Requisite  allegations  of  fraud. 

696a.  Judgment  through  unauthorized  appearance  of  third  person. 

697.  When  judgment  not  enjoined  on  ground  of  fraud. 

698.  Cumulative  statutory  remedy  for  fraud,  etc. 

699.  Enjoining   foreign   judgments    for   fraud. 

700.  Federal   injunctions   against  fraudulent   State   judgments. 

701.  Mistake   as   ground   for   injunction. 

702.  When  mistake  not  ground  for  injunction. 

703.  Judgment  not  enjoined  for  mistakes  of  law — Counsel's  mistake. 

704.  Judgment  enjoined  for  court's  mistake,  etc. 

705.  Same  subject — Court's  error. 

706.  Accident   as   ground    for    injunction. 

707.  Where  legal  remedy  for  accident  and  mistake. 

CHAPTER  XXIV. 

Against  Execution  Sales  of  Realty. 

Section  707a.  Executions  generally — No  injunction  where  adequate  remedy 
at  law. 

707b.  Executions  generally — Where  execution  void  on  face. 

707c.  Executions  generally — Sale  of  complainant's  property  on  exe- 
cution against  another. 

707d.  Same  subject — Vendor  or  vendee. 

707e.  Executions  generally — Where  no  judgment  or  illegal  judgment. 

707f.  Execution  sales  of  realty — Generally. 

708.  Enjoining  execution  sale  of  homesteads. 

709.  Same  subject. 

710.  Enjoining  execution  where  judgment  is  cloud  on  title. 

711.  Same  subject — Possession  must  be  alleged. 

712.  Enjoining  cloud  on  title  of  insolvent's  assignee. 


xxviii  Table  of  Contents. 

Section  713.  As  to  lands  under  administration. 

714.  Writ  of  possession. 

715.  Same  subject — Nonresident — No  service. 

716.  Enjoining   ejectment   judgment   as    against   equitable   leasee. 

717.  Enjoining  order  for  forcible  entry,  etc. 

718.  Protecting  wife's  separate  real  estate. 

719.  Same  subject — Voluntary  conveyance  by  husband  to  wife. 

720.  Enjoining  levy  on  land  intended  to  be  conveyed  to  debtor's  wife. 

721.  Enjoining  judgment  for  failure  of  title  or  consideration. 

722.  Enjoining  execution  on  third  person's  property. 

723.  Same   subject — Exceptions. 

724.  Same  subject — To  prevent  cloud  on  title. 

725.  Enjoining  sale  of  land  where  judgment  or  debt  paid. 

726.  Enjoining  execution  on  land  where  judgment  collusive. 

727.  Enjoining  sale  under  judgment  by  one  not  a  party  to  judgment. 

728.  Enjoining  execution  sale  in  order  to  protect  mechanics'  liens. 

729.  Same  subject. 

730.  Judgments  on  contract  where  exemption  from  liability. 

731.  Enjoining  excessive  levy. 

732.  Executions  affecting  remainders. 

733.  Enjoining   collection   of   purchase   money    where   judgment-    .  < 

liens. 

734.  Where  no  summons  or  notice  served. 

735.  Enjoining  executions  beyond  jurisdiction  of  court. 

730.  Pleading — Requisite  allegations — Facts   not   conclusions. 
737.  Appeal  from  decree  enjoining  realty  execution. 

CHAPTER  XXV. 

Against  Execution  Sales  of  Personalty. 

Skctton  738.  Enjoining  sale  of  exempt  property. 

739.  Sale  not  enjoined  where  legal  remedy  adequate. 

740.  Not  enjoined  where  remedy  therefor  in  damages. 

741.  Execution  not  enjoined  where  there  is  a  statutory  remedy. 

742.  Incumbrancer's  injunction  against  execution. 

743.  Execution   sale  of  paraphernal   property. 

744.  Enjoining  sale  of  personalty  in  custodia  legis. 

745.  Staying  execution   pending  appeal. 

746.  Damages   for   enjoining  execution   process. 

CHAPTER  XXVI. 

A«;.\:nst  Tin.   [nfmngement  of  Trade-Marks ;  Trade  Names, 

frteoTioar  747.  The  purpose  and  philosophy  of  trademarks. 

748.  Four  peneral   rules. 

749.  Priority  of  use. 

750.  Descriptive  words,  etc.,  as  to  quality. 

751.  8ame  subject. 


Table  of  Contexts.  xxix 

t     ).      ■•     ~< 

Section  752.  Letters  and  numerals. 

753.  Geographical  names. 

754.  Names  indicating  origin  and  ownership  protected. 

755.  Names  applied  to  natural  products. 

756.  Trademark  word  or  name  not  to  be   used  by  another   in  any 

form — Otherwise  as  to   picture  or   symbol. 
756a.  Enjoining  use  of  name  of  hotel. 

757.  When  actual  deception  need  not  be  proved. 

758.  Infringing  trademarks  by  acts  only. 

759.  Same  subject — Responsibility  for  sales  by  retailer 

760.  Use  of  person's  name  by  another  enjoined. 

761.  Same    subject — In   Massachusetts. 
761a.  Use  of  name  under  a  license. 
761b.  Where   trademark  only  transferred. 

762.  Use  of  own  name  when  enjoined. 
762a.  Same  subject  continued. 

763.  Use  by  vendor  of  business  of  own  name. 

764.  Arbitrary  and  fanciful  words  as  trademarks. 

765.  Coined  words  registered  as  trademarks. 

766.  Corporate  names. 

767.  Name  of  patented  article  after  patent  expires, 
767a.  Name  copyrighted — Expiration  of  copyright. 

768.  Effect  of  trademark  registration. 

768a.  Trademark  registration — Effect  on  jurisdiction. 

769.  Unlawful  competition. 

769a.  Unlawful  competition  continued. 

769b.  Use  of  former  employer's  name  in  advertising. 

770.  Imitation  where  no  technical  trademark. 

771.  Same  subject — Fraudulent  imitation. 

772.  Same    subject — Resemblance    of    primary    importance— Court's 

comparison  without  witnesses. 

773.  Test  of  enjoinable  resemblance. 

774.  Misleading  imitations  illustrated — Boxing  and  methods. 

775.  Enjoining  imitation  though  differing  in  details. 

776.  Same  subject  illustrated. 

777.  Packages  of  peculiar   form  and   devices. 

778.  Protecting  symbols  foreign  manufacturers — Necessary  publicity. 
778a.  Labels  indicating  article  made  by  union — Imitation  of. 

779.  Necessary  averments  of  imitation's  publicity. 

780.  Preliminary  injunction. 

781.  Preliminary  injunction  refused  in  doubtful  cases — Delay— Fraud. 

782.  Same  subject. 

782a.  Preliminary   injunction — Dissolution   of. 

783.  Violations    of    injunction — Punishment. 
783a.  Defenses. 

784.  Defenses  continued. 

785.  Cross  bill  as  an  original  bill. 

786.  Parties. 

787.  Transferees. 

788.  Same   subject. 


XXX 


Table  of  Contents. 


Sbctiow  789.  Where  trademark  but  not  business  transferred. 

790.  Effect  of  laches. 

791.  Clean  hands. 

792.  Clean  hands — Patent  medicines. 
792a.  Same  subject — Trade  name. 

793.  Clean  hands — Where  no  deception  intended. 

CHAPTER  XXVII. 
Against  Infringement  of  Patents. 

SBCTIOX  794.  The  nature  of  patentable  inventions. 

795.  Exclusive  jurisdiction  of   Federal  courts  over  patent  infringe- 

ments. 

796.  Jurisdiction  of  Circuit  Courts. 

797.  Ground  of  jurisdiction. 

797a.  Right  to   injunction  as   affected  by  non-user. 

798.  Enjoining  assignee  from  encumbering  patent. 

799.  Defeat  of  jurisdiction  by  expiration  of  patent. 

800.  Same  subject. 

801.  Same  subject — Enjoining  infringing  sales. 

802.  Enjoining  infringement  before  patent  issues. 

803.  Enjoining  slander  of  title  to  letters  patent. 

804.  Parties — Joinder   and   misjoinder. 

805.  Agents,  etc.,  as  parties  defendant — Foreign  shipmasters. 

806.  Enjoining  licenses — Effect  of  sale  by  patentee. 
806a.  Injunction  against  bringing  of  suits. 

807.  Injunction  against  owner  of  patent' in  favor  of  licensee. 

808.  As  to  innocent  purchasers  from  infringers — Users. 

809.  Clean  hands. 

810.  Requiring   bond    from    complainant — Damages   against  him. 

811.  Threatened  infringements  considered — Actual  infringements. 

812.  Accounting  as  incidental   relief. 

813.  Same   subject — Measure  of  damages. 

814.  Increased  damages  against  defendant  under  the  statute. 

815.  Destruction  of  infringing  articles  rarely  decreed. 

816.  Injunction  barred  by  patentee's  laches. 

817.  Laches   continued. 

818.  Laches  in  applying  for  reissue. 

819.  Effect  of  laches  where  infringement  admitted. 

820.  Failure  to  mark  device  as  patented  not  a  bar. 

821.  Defendant's  bond  instead  of  injunction. 

822.  Same   subject — Illustrations. 

823.  Royalty  instead  of  injunction. 

824.  Balancing  convenience  and   equities. 

825.  Same  subject. 

826.  Objection  of  public  injury. 

827.  Plaintiff's  right  to  be  clear — Not  so  defendant's. 

828.  Establishing  right  by  jury. 

829.  Absence  of  equities  illustrated. 


Table  of  Contents.  xxxi 

Section  830.  Complainant's  estoppel  by  acquiescence  in  patent  office  decisions. 

831.  In  cases  of  withdrawn  patent — Disclaimer. 

832.  Estoppel  further  considered. 

833.  Estoppel  by  acquiescence  in  defendant's  acts. 

834.  Employee's  inventions. 

834a.  Employee's     inventions — Right  of  employer  to — Injunctions- 
Damages. 

835.  Defendant's  solvency  as  defense. 

836.  Protecting  patentee  of  improvements — Proof  of  prior  use. 

837.  Infringer  enjoined  in  spite  of  his  promise. 

838.  Necessary  averments  of  bill. 

839.  Multifarious  bill. 

840.  Surplusage  in  answer — Prior  public  use  of  two  years. 

841.  Demurrer  to  infringement  bill. 

842.  Violation  of  injunction. 

843.  Dissolution  of  injunction. 

843a.  Dissolution  of  injunction  continued. 

844.  Where  plaintiff's  right  admitted  or  adjudicated. 
844a.  Prior  adjudications — Generally. 

845.  Conclusive  prior  adjudications — Of  Supreme  Court,  etc. 

846.  Patent  sustained  in  other  circuits. 

847.  Same  subject — Patent  office  decisions. 

848.  Prior  inconsistent  decisions. 

849.  Foreign  adjudications,  etc. 

850.  Re-examination  by  Circuit  Court  of  Appeal. 

851.  Enjoining  infringement  when    patent   adjudicated — Other  ques- 

tions postponed. 

852.  Postponing  new  defenses  till  final  hearing. 

853.  Same  subject — Court's  discretion. 

854.  Prior  adjudication  not  absolutely  essential — Public  acquiescence. 

855.  Old,  distinguished  from  new  patents. 

856.  Presumed  validity  of  patent,  etc. 

857.  No  preliminary  injunction  where  validity  doubtful. 

858.  Or  where  infringement  doubtful. 

859.  Or  where  novelty  doubtful. 

860.  Patentable  novelty  essential. 

861.  Necessary  averments  to  novelty,  etc. 

862.  Mere  mechanical   skill  not  patentable — Invention  essential. 

863.  Old  processes  for  new  uses  not  protected. 

864.  Same  subject — Where  material  defects  remedied. 

865.  Same  subject. 

866.  Where  defendant  before  estopped  to  question  novelty,  etc. 

867.  Anticipation — Proof  as  to. 

868.  Proof  of  another's  prior  use  or  knowledge. 

869.  Notice  of  prior  use — Waiver  of  oath. 
869a.  Appeal — Scope  of  review  on. 


xxxii  Table  of  Contents. 

CHAPTER  XXVIII. 
Against  Infringement  of  Cofyeight. 

Section  870.  Copyright  distinguished  from  patents. 

871.  Copyright  protection  is  wholly  statutory. 
871a.  Construction   of  copyright   statutes. 
871b.  Compliance  with  statutory  requirements. 

871c.  Same  subject — Publication  of  book  in  serial  form. 
87 Id.  Remedies  provided  by  copyright  statutes  exclusive. 

872.  Extracts  as  infringement. 

873.  Compilations  and  abridgements,  etc. 
873a.  Compilations — Credit    ratings. 

874.  Copyright  of  maps  and  plans. 

875.  Albums — Cyclopaedias — No   copyright   in   name. 

876.  Same  subject. 

877.  Labels — Prices  current — Blanks. 

878.  Enjoining  the  piracy  of  news. 

879.  Protecting   newspaper's   name. 

880.  Directory   headings. 

881.  Protecting   law    reports — Courts'   opinions. 

882.  Law  reports  and  digests — Balancing  convenience  in  cases  of  doubt. 
882a.  Infringement  by   State — Publication   of   statutes. 

883.  Dramatizing  novels. 

884.  Musical  compositions — Piano-forte  arrangements,  etc. 

884a.  Musical  composition — What  is  a  copy  of  within  copyright  law. 

885.  Pantomime — Merely  mechanical   movements. 

886.  Protecting  translations   of  plays,   etc. — International    copyright. 

887.  Protecting  sculpture. 

888.  Paintings,  photographs,  etc. 

888a.  Right  to  "  vend  "  under   copyright  statutes  construed — Fixing 

of  retail   price  by  owner  of  copyright. 
888b.  Sale  of  plates  by  owner  of  copyright — Agreement  as  to  price 

of  book. 
SSO.  When  injunction  should  issue — Jurisdiction. 

890.  Rule  as  to  preliminary  injunctions. 

891.  In  cases  of  agency. 

2.  Coincidence   of   errors   as   proof  of   infringement. 
892a.  Doubtful  cae 

Clean  hands. 
S93a.  Pleading. 
994.  Parties. 

Parties — Action  by  one  of  tenants  in  common. 
81)6.  Alien  assignors — Legal  and  equitable  owners. 
807.  Accounting  incident  to  injunction — Rule  as  to  profit.*. 

Rule  of  damages. 
■    Forfeiture   of   infringing  lxioks. 


Table  of  Contents.  xxxiii 

CHAPTER  XXIX. 

To  Protect  Literary  Property. 

Section  900.  Common  law  protection  to  inventors  and  authors. 

901.  Protecting  property  in  manuscripts. 
901a.  Same  subject — Unfair  competition. 

901b.  Right  of  author  to  have  name  appear — Encyclopedia  articles. 

902.  Protecting  private  letters. 

903.  Protecting  lectures,  paintings. 
903a.  Protecting  statues. 

903b.  Protecting  photographs. 

903e.  Publication  of  opera — Reservation  of  acting  right. 
903d.  Publication   of  play — Agreement  to  keep  work  in   manuscript 
form. 

904.  Where  play  obtained  by  memorizing  it. 

905.  Translator    and    dramatizer    protected. 

905a.  Play  based  on  facts  of  a  murder — Right  to  produce — Accused 
on  trial. 

906.  Preventing  breach  of  confidence. 

906a.  Same  subject — Use  of  another's  statements  in  advertisement. 

907.  Colorable  imitations. 

908.  Jurisdiction. 

CHAPTER  XXX. 

Relating  to  Trusts  and  Confidential  Communications. 

Section  909.  Jurisdiction — Limited  by  terms  of  trust. 

909a.  Possession  of  trustee  that  of  court — Interference  with. 

910.  Danger  to  trust  fund. 

911.  Resulting  trusts,  etc. 

912.  Constructive  trusts. 

912a.  Transfer  to  trustee  to  pay  income  for  life. 

913.  Federal    control   of    public    trusts    in    States. 

914.  Set-offs  against  trustee. 

915.  Charitable  gifts. 

916.  Enforcements  by  attorney-general. 

916a.  Property  in  trust  for  religious  organization. 

917.  Conflicting  church   trustees. 

918.  Departures  from  doctrine,  etc. — Mere  formal  changes. 

919.  Diversion  from  donor's  intended  use. 

920.  Same  subject. 

921.  Under  the  New  York  statute. 

922.  In  case  of  independent  churches — Majority  rule. 

923.  Deposing  pastors,  etc. 
923a.  Same  subject — Pleading. 

923b.  Property  in  trust  for  certain  purpose — Injunction  against  use 

for  another  purpose. 
923c.  Enjoining  action  by  ward — For  detention  of  ward. 

C 


xsxiv  Table  of  Contents. 

Sbotcon     924.  Protecting  trade  secrets,  etc. — General  rule. 

925.  Illustrations — Secret  patterns,  etc. 

926.  Same  subject — Exceptions. 

926a.  Where  disclosure  of  secret  process  consideration  of  employment 

927.  Attorney  and  client. 

928.  Partner's  outside  use  of  information. 

929.  Dissolution  of  injunction. 


CHAPTER  XXXI. 

Relating  to  Wills  and  Decedents'  Estates. 

Sbotion  930.  Establishing  the  validity  of  wills,  etc. 

930a.  Injunctions  in  cases  of  administration — Purpose  of. 

931.  Enforcing  agreement  in  execution  of  will. 

932.  Forged  will — Injunction — Laches. 

932a.  Execution   of   writ   of   assistance — Right   of   administrator    to 
enjoin. 

933.  Testamentary  trust — Equitable  action  to  enforce. 

934.  Murderer   of   testator   prevented  taking   under  will. 

935.  Limited  equity  jurisdiction. 

936.  Abuse  of  trust  by  executor,  etc. — Fraud  and  waste — Incompe- 

tency. 

937.  Arbitrating  claims  against  estate. 

937a.  Misappropriation  of  personal  property  by  stranger — Action  by 

next  of  kin. 
937b  Enjoining  action  to  remove  administrator. 

938.  Unlawful  sales  of  realty. 

939.  Powers,  defective  execution  of. 

940.  Restraining  execution  of  power  of  sale. 

941.  When  creditor  may  compel  exercise  of  power. 

942.  Restraining  the  payment  by  executor  of  outlawed  debts, 
942a.  Enjoining  breach  of  covenant  by  executor. 

943.  Protecting  assets  from  action  at  law,  etc. 

943a.  Marshalling  assets — Enjoining   suit  by   creditor — Usury. 

944.  Foreign   executors. 

945.  Enjoining  sale  of  realty  after  unreasonable  delay. 

946.  Enjoining  judgment  for  and  against  executor. 

947.  Insolvency  of  executor,  etc. 

948.  Where  estate  insolvent. 

949.  Set-offs. 

950.  Execution  on  property  in  executor's,  etc.,  custody. 

951.  Accounting. 

951a.  Enjoining  action  by  administration — Heirs  necessary  parties. 


Table  of  Contents.  xxxv 


CHAPTER  XXXII. 
Relating  to  Partners  and  Others  Jointly  Interested. 

Section  952.  Enforcing  partnership  rights  and  agreement — Clean  hands. 

952a.  Same    subject— Exclusion    of    partner— Refusal    to    carry    out 
agreement. 

953.  Same  subject — Exceptions. 

954.  Protecting  the  partnership  good  will. 

954a.  Breach  of  covenant  as  to  engaging  in  same  business. 

955.  Injunction  at  creditor's  suit. 

956.  Lessor  and  lessee  as  partners. 

957.  Joint  owners. 

958.  Tenants  in  common. 

958a.  Same  subject — Parties  not  strictly  tenants  in  common. 

959.  Where  one  partner  takes  title. 

960.  Levy  against  partner  and  against  firm. 

961.  Sale  under  judgment  against  co-partner. 

962.  Appointing  receivers. 

963.  Appointing  receivers  on  dissolution. 

CHAPTER  XXXIII. 

Relating  to  Husband  and  Wife. 
Section  964.  Upholding  contracts  between  them— Protecting  her  realty, 

965.  Protecting  wife's  realty  from  husband's  creditors. 

966.  Protecting  wife's  dower  and  homestead  rights. 

967.  Protecting  wife's  separate  estate. 

968.  Protecting  wife's  estate  from  administrator,  etc. 
968a.  Suit  for  divorce  in  another  State. 

969.  Actions  for  divorce — Alimony — Decree  lien  on  realty. 

970.  Same  subject. 

970a.  Same   subject — Statute   construed. 

971.  Jurisdiction  of  alimony. 

972.  Wife's  bad  faith. 

973.  Husband's  rights. 

CHAPTER  XXXIV. 
Relating  to  Creditors  and  Debtors. 

Bection  974.  Fraudulent  transfers  by  debtors — Parties. 

975.  Enjoining  assignments  for  creditors — Preferences. 

976.  Fraudulent  chattel  mortgages. 

977.  Railroad  creditors. 

978.  Attaching  creditors. 

979.  Judgment  creditor's   right  of  selection. 

980.  Wife's  creditor's  bill. 

981.  General  creditors  without  lien. 

982.  Sale  of  pledged  commercial  paper. 


xxxvi  Table  of  Contents. 

Section  983.  Exemption  of  pension  property. 

984.  Set-offs. 

985.  Debtors   in  bankruptcy — State  jurisdiction. 

986.  Same   subject — Federal  jurisdiction. 

987.  Same   subject. 

987a.  Same  subject — Act  of  1898. 
987b.  Same  subject — Power  of  referee. 
987e.  Same  subject — Right  of  appeal. 

988.  Insolvent  corporation — Maritime   liens. 

989.  Creditor's  action  against  insolvent  in  another  State,  etc. 
989a.  Injunction  as  excusing  failure  to  sue  stockholders. 
989b.  Injunction  granted  at  chambers. 

CHAPTER  XXXV. 

Relating  to  Principal  and  Surety  and  Agent. 

Section  990.  General    considerations. 

991.  Compelling  creditor  to  proceed  against  principal  debtor. 

992.  Pursuing  principal  debtor  firsT. 

99.3.  Applying  security  for  surety's  benefit. 

994.  Where  surety  an  apparent  principal. 

995.  Sheriff's  surety. 

996.  Set-off  in  favor  of  surety. 

997.  Principal  and  agent. 

CHAPTER  XXXVI. 

Relating  to  Realty. 
Section     998.  If  title  in  dispute. 
999.  Showing  of  title. 

1000.  Securing   possession   by   injunction. 

1001.  Possession  protected. 

1002.  Same  subject. 

1003.  Where  no  title — Insolvency. 

1004.  To  remove  cloud  on  title. 

1005.  Cloud  on  title — Lien  foreclosure,  etc. 

1006.  Where  defect  apparent. 

1007.  Rights  acquired  by  adverse  possession — Preventing  trespass. 

1008.  Vendor's  lien. 

1009.  Enforcing  conditions  of  deed — Forfeiture — Warranty. 

1010.  Proscription — Purpresture — Accretions. 

1011.  Protecting  homesteads — Wyoming  statute. 

1012.  Party  walls. 

1012a.  Same  subject  continued. 

1013.  Eminent   domain — Equity   jurisdiction. 

1014.  Taking    under    eminent    domain — Compensation. 
1014a.  Same  subject — Relating  to  streets. 

1014b.  Same  Subject — Pleading. 

1015.  Whore  property  only  damaged. 


Table  of  Contents.  xxxvii 

CHAPTER  XXXVII. 

Relating  to  Easements. 

Section  1016.  Protecting  visible  easements. 

1017.  Easement  and  nuisance — General  consideration. 

1018.  Plaintiff's    right    to    be    clear. 

1019.  Establishing  right  at  law. 

1020.  Injury  to  be  shown — Adequate  remedy. 

1021.  Same  subject. 

1021a.  Enjoining  excessive   use  of  easement. 

1022.  No  injunction  where  compensation  paid. 

1023.  Delay  and  acquiescence,  etc. 

1024.  Protecting  public  privileges — Lateral  support. 

1025.  Grantor's  reserved  right  of  way. 

1026.  Easement  in  street  by  purchaser  of  lot. 

1027.  Granted  right  of  way — User. 

1027a.  Granted  right  of  way— Right  as  to  light  and  air. 
'■  1028.  Right  of  way — Grant  uncertain. 

1029.  Pleadings — Prescription. 

1030.  Abandoning  easement  to  railroad  company. 

1031.  Reserved  light  easement — Ancient  lights. 

1032.  View  obstruction. 

1033.  Changing  natural  flow  of  water. 

1034.  Natural  flow — Water  course. 

1035.  Restraining  diversion  of  water — Pleadings  and  proof. 

1036.  Same  subject — Plaintiff's  delay — Mandatory  injunction. 

1037.  Well-right — Reservoir — Title    required. 

1038.  Prescriptive  diversion  of  stream. 

1039.  Riparian   owners. 

1040.  Drainage  license — Irrigation. 

1041.  Irrigation. 

CHAPTER  XXXVIII. 

Against  Nuisance. 

Section  1042.  Definition    and    jurisdiction — Damages. 

1042a.  Awarding  damages  in  injunction  suit — Pleading. 

1043.  Nuisance  from  natural  causes. 

1044.  Nuisance  not  to  be  illegal  only — To  be  injurious. 

1045.  Same   subject. 

1046.  Nuisances  created  by  statute  or  ordinance — Wooden  buildings 

— Other  structures. 

1047.  Wooden  buildings. 
1047a.  Signboard    on    building. 

1048.  Statute    remedy   concurrent    with    injunction — Election. 

1049.  Police  regulations — Eailroad  grants,  etc. 

1050.  Parties. 

1051.  Tenants   as   parties. 


xxxviii  Table  of  Contents. 

Section  1052.  Joinder  of  abutting  owners,  etc. 

1053.  Parties   in  liquor  nuisance  suits. 

1054.  City  enjoining  county. 

1055.  Health  board  acting  for  city. 

1056.  Enjoining  Federal  receivers. 

1057.  Prescriptive  right  to  maintain  nuisance. 

1058.  When  prescription  has  no  application. 

1059.  Injunction  to  prevent  prescription. 

1060.  Pre-existing  nuisance. 

1061.  Estoppel,  by   acquiescence — Laches. 

1062.  Same   subject. 

1063.  Acquiescence   illustrated. 

1064.  Establishing  the  fact  of  a  nuisance. 

1065.  Jury  trial  in  New  York,  etc. 

1066.  Establishing  right  at  law — Judicial  discretion. 

1067.  Judicial    discretion — Comparative   injury,   etc.,  considered. 

1068.  Quia    timet    injunctions — Hospitals. 
1068a,  Explosives. 

1069.  Contingent  and  speculative  nuisance. 

1070.  Livery  stables. 

1070a.  Livery  stables — Ordinances. 

1071.  Enjoining  nuisance  before  injury. 

1072.  Modified  injunctions — Where  nuisance  can  be  avoided. 

1073.  Form  and  scope  of  injunction  against  nuisance. 

1074.  Indefinite  injunctions. 

1075.  Mandatory  injunctions. 

1076.  Effect  of  malicious  motive. 

1076a.  Statute  enjoining  malicious  erection  of  structure  construed. 

1077.  Unreasonable   use   enjoined — Miscellaneous. 

1078.  Injunction  of  public  nuisance  not  favored. 

1079.  Public  nuisances — Limited  power  to  enjoin. 

1080.  Same   subject — Protecting  public  lands. 

1081.  Private  injunction  of  public  nuisance. 

1081a.  Private   injunction    of    public   nuisance    continued. 

1082.  Private   area   way   on   public   street. 
10R2a.  Public  highway  nuisance — General   rule. 

1083.  Public   highway    nuisance   continued. 

1084.  Same   subject. 

L084a.  Where   defendant   conveys   property   pending   suit. 
109").  Discharging  cesspools   into  public  gutters. 
10RP).  Public  wharf  nuisance,  etc. 

1087.  Wharf  nuisance — Relative  rights  established. 

1088.  Nitroglycerine — Public  nuisance. 
Liquor   Nuisance — Parties. 

1090.  Liquor  nuisance. 

1091.  Liquor  saloons,  etc. — Pharmacy. 

1092.  Enjoining  saloon  where   railroad  workmen  drink. 

1093.  Dumping   hoard   on    city    wharf. 
101)4.  Sewage  and  sewers. 

1095.  Party   walls. 


Table  of  Contents.  xxxix 

Section  1096.  .Nuisances  to  dwelling  houses. 

1097.  Noise  and  vibration. 

1098.  Same    subject. 
1098a.  Noisome  smells. 
1098b.  Undertakers. 

1099.  Considerations  of  public  utility. 

1100.  Abating    filth    on    adjacent    premises — Privies. 

1101.  Burial  places — Jails. 

1102.  Dangerous   and  hurtful   trades — Fertilizers. 

1103.  Same  subject. 

1104.  Fat  rendering — Jurisdiction. 

1105.  Pleasure  garden — Theaters. 
1105a.  Skating  rink. 

1106.  House  of  ill  fame. 

1107.  Schools  and  churches — Ringing  of  bells. 

1108.  Same   subject — Where   nuisance   is   legalized. 

1109.  Bee  hives. 

1110.  Nuisance   to  pleasure   resorts. 

1111.  General  rules — Polluting  water. 
1111a.  Same  subject  application  of  rules. 
1111b.  Same  subject — Prescriptive  right. 

1112.  Same    subject — Sanitariums — Percolations. 
1112a.  Same  subject — Parties — Pleading. 

1113.  Diverting  water  from  natural  channel. 

1114.  As  to  subterranean  water. 

1115.  Railroad  embankment  without  culvert. 

1116.  Enjoining  dams — Obstruction  of   stream. 

1117.  Obstructing  navigable  stream. 

!117a.  Dam  authorized  by  legislature — Navigable  stream. 

1118.  Increasing  natural   flow  of  water. 

1119.  Surface  drainage. 

1120.  Same  subject — Surface  water. 

1121.  Same  subject. 

1122.  Floating  logs. 

1123.  Hydraulic  mining  debris. 

1124.  Brick  manufactory. 

CHAPTER  XXXIX. 

Against  Trespass. 

Section  1125.  General  rule. 

1126.  Simple  trespass  not  usually  enjoined. 

1127.  Where  injury  trifling,  doubtful,  etc. 

1128.  Trespasser  not  protected,  etc. — Clean  hands. 

1129.  Continuous  and  repeated  trespass. 

1130.  To  prevent  multiplicity. 

1131.  Where  trespass  continuous  only  in  limited  sense. 

1132.  Aggravated  trespass. 

1133.  Same  subject — Excluding  light  and  air. 


xi  Table  of  Contents. 

Sjktion  1134.  Adequate  remedy  at  law — Pleading  want  of  equity. 

1135.  Same  subject — Exceptions. 

1136.  Legal  remedy  continued. 

1137.  The  Missouri  rule. 

1137a.  Effect  of  recovery  of  damages. 

1138.  Effect  of  insolvency. 

1139.  When  plaintiff's  title  in  dispute. 
1139a.  Same  subject — Qualification  of  rule. 

1139b.  Where  property  sold  after  action  commenced. 

1140.  Determining  title — Temporary  injunction. 

1141.  Same  subject — Defendant's  title. 

1142.  Plaintiff  must  have  possession. 

1143.  What  is  sufficient  possession. 

1144.  Acquiescence — Where  license  abused. 

1145.  Effect  of  lapse  of  time,  etc. 

114G.  Same  subject — Continuous  trespass. 

1147.  Taking  for  public  use,  etc. 

1148.  Trespass  on  public  domain — Pre-emptors. 

1149.  Burial-place  trespasses. 

1150.  Trespass  by  railroad  company. 
1150a.  Timber  trespasses. 

1151.  Timber  trespasses  continued. 

1152.  Same  subject — Bond  instead  of  injunction. 

1153.  Boring  gas  wells. 

1154.  Artificial  channels  which  submerge  adjacent  land. 

1155.  Trespass  to  mines. 

1156.  Same  subject — Trying  title  to  mine. 

1157.  Same  subject. 

1158.  Mining  trespass  on  surface  lands. 

1159.  Trespass  by  road  officers. 

1160.  Trespass  by  railroad  strikers — Mandatory  injunction. 

1161.  Trespass  on  railroad  land  grants. 

1162.  Meander  line  on  supposed  lake. 

1163.  Tide  land  trespassers. 

1164.  Jurisdiction. 

1165.  Parties. 

1166.  Requisites  of  bill — Facts  not  conclusions. 

CHAPTER  XL. 

Against  Waste. 

■Section  lit;:.  Waste  defined. 

1168.  Statutory  waste  enjoined. 

1169.  Alteration  of  demised  premises. 

1170.  Insolvency  and   irreparable  injury  considered. 

1171.  Title  in   litigation — Injunction  pendente  lite. 

1172.  Writ  of  estrepement. 

1173.  Enjoining  mortgagor  in   possession. 

1174.  Removal  of  fixtures  by  mortgagor. 


Table  of  Contents.  sli 

Section  1175.  Enjoining  vendee  and  vendor. 

1176.  As  to  building  removed  from  mortgaged  land. 

1177.  Removal  of  manure. 

1178.  Parties  plaintiff. 

1179.  Enjoining  co-tenant  and  life  tenant. 

1180.  Tenant  in  dower. 

1181.  Waste  of  timber. 

1182.  Same  subject. 

1183.  Equitable  waste. 

1184.  Same  subject. 

1185.  Waste  of  water. 

1186.  Injury  and  insolvency  considered. 

1187.  Plaintiff's  laches  and  misconduct. 

1188.  Account  for  damages. 


CHAPTER  XLI. 

Against  Taxes. 

Section  1189.  General  rule. 

1190.  Reason  of  the  rule. 

1190a.  Where  adequate  remedy  at  law. 

1191.  Adequate  statutory  remedy. 

1192.  Certiorari. 

1193.  Irregularities  in  the  assessment. 

1194.  Same  subject — Official  discretion — Plaintiff's  fault. 

1195.  Further  illustrations. 

1196.  Restraining  the  execution  of  a  deed. 

1197.  Cases  where  an  injunction  was  denied. 

1198.  Prerequisites  to  injunction. 

1199.  Insolvency  of  assessor. 

1200.  General  and  special  taxes. 

1201.  Same  subject — Personal  tax,  etc. 

1202.  Inequalities  in  valuations. 

1203.  Collateral  attack  by  injunction — Stock. 

1204.  Assessors  and  boards  of  review. 

1205.  Same  subject — Findings  by  board,  etc. 

1206.  Action  of  board  reviewed. 

1207.  Unconstitutional  statutes. 

1208.  Tendering  sum  due. 

1209.  Same  subject — Estoppel,   etc. 

1210.  Same  subject — Additional  illustrations. 

1211.  Fraud. 

1212.  Clouding  the  title. 

1213.  Same  subject — Void  assessments. 

1214.  Property  not  subject  to  taxation. 

1215.  Exempt  property— Cemetery. 

1216.  Same  subject — Montana  and  Tennessee. 

1217.  Restraining  municipal   taxes. 


xlii  Table  ok  Contents. 

Section  1218.  Same  subject— Illustrations. 

1219.  Controlli?ig  municipal  affairs. 

1220.  Municipal  improvements — Council's  discretion. 

1221.  Where  a  municipal  tax  has  been  restrained. 

1222.  Tax  in  aid  of  railroads,  etc. 

1223.  Same  subject. 

1224.  Further  illustrations. 

1225.  Gratuities. 

1226.  Same  subject. 

1227.  Qualification  of  officers,  etc. 

1228.  Parties — One  suing  for  others. 

1229.  Municipality  a  party. 

1230.  Joinder  of  parties. 

1231.  Parties  to  have  interest  in  the  land 

1232.  Taxpayer  bound  by  his  election. 

1233.  Void  taxes. 

1234.  Illegal  tax— West  Virginia— Ohio. 

1235.  Res  adjudicata. 
123G.  Personal   property. 

1237.  Same  subject — Rolling  stock. 

1238.  Personal  property  in  hands  of  assignee. 

1239.  Taxation  of  stock. 

1240.  National  banks. 

1241.  Bank  stock  and  property. 

1242.  Internal  revenue  tax. 

1243.  Property  of  third  person. 

1244.  Levy  after  bill  filed,  etc. 

1245.  Non-residence. 

1246.  Multiplicity  of  suits. 

1247.  Federal  interference,  in  States. 


CHAPTER  XLII. 

Relating  to  Landlord  and  Tenant. 

Section  1247a.  Restraining  summary  proceedings,  etc. 
1248.  Same  subject. 

1248a.  Same  subject— Dissolution  of  injunction. 
1219.  Mandatory  injunctions  in  tenant's  favor. 

1250.  Tenant's  exemptions   in  Florida. 

1251.  Disturbing  lessee's  possession— Light  and  air. 

12f, la.  Interference  with  right  of  tenant  to  water-power. 
1251b.  Rights  of  sub-lessee— Purchaser  of  crops. 

1252.  In    landlord's    favor— Fixtures— Subletting. 
■';.  Waste  by  tenant— Signs. 

1254.  Same  subject. 

i5.  Restraining  lessee's  trade  pending  suit,  etc. 
1256.  Remedy  at  law— Balancing  inconvenience— Doubtful  right. 


Table  of  Contents.  xliii 

CHAPTER  XLIII. 

Relating  to  Mortgages. 

Section   1257.  Preventing  oppression  by  mortgagee. 

1258.  Enjoining  foreclosure  of  mortgage. 

1259.  In  cases  of  fraud  and  usury. 

1260.  In  cases  of  undue  influence. 
1260a.  Where  other  adequate  remedy. 

1261.  Foreclosure  where  property  is  in  receiver's  hands 

1262.  Enjoining  mortgagee  from  taking  possession,  etc. 

1263.  Enjoining  sale  under  trust  deed. 

1264.  Restraining  power  of  sale — Grounds. 

1264a.  Same  subject — Stock  of  merchandise — Collateral  agreement. 

1265.  Set-off — Mortgage  against  judgment. 

1266.  Foreclosure  by  advertisement. 

1267.  Where  mortgage  debt  tendered  or  paid. 

1267a.  Breach  of  condition  by  mortgagor — What  essential  to  injunc- 
tion— Excuse. 

1268.  Where  mortgage  not  due — When  injunction  refused. 

1269.  Bond — Violation — Sureties. 

1270.  Parties — Defect  of. 

1271.  Protecting  lien  and  security  of  mortgagee. 

1272.  As  between  conflicting  liens. 

1273.  Protecting  junior  chattel  mortgagees,  etc. 

1274.  Growing  crops. 

1275.  At  suit  of  purchasers,  etc. — Cloud  on  title. 

1276.  Protecting  sureties. 

CHAPTER  XLIV. 

Relating  to  Municipal  Corporations. 

Section  1277.  City  council's  discretion — If  no  jurisdiction. 

1278.  Staying  municipal  government. 
1278a.  Franchise  not  sold  to  highest  bidder. 
1278b.  Ordinance  violating  contract  rights. 

1279.  Protecting  franchise  granted  by  ordinance. 

1279a.  Franchise  fixing  rates — Ultra  vires — Right  to  change  by  ordi- 
nance. 

1280.  Other  adequate   remedy. 

1281.  Injury  essential — Adequate  remedy. 

1282.  City  improvements. 

1283.  Same  subject. 

1284.  Control  of  streets. 

1285.  Mandatory  injunction  in  favor  of  city. 

1286.  Restraining  indebtedness. 

1287.  Same  subject. 

1288.  Interest  on  bonds — Parties. 

1289.  Invalid  municipal   ordinances. 

1290.  Same  subject. 


xliv  Table  oe  Contents. 

Section  1291.  Same  subject — Private  bridge  over  public  alley. 

1292.  Ordinance  passed  by  officers  de  facto. 

1293.  Ordinance  in  favor  of  railroad  bonds — Parties. 

1294.  Invalid  city  contracts. 

1295.  Frame  buildings  within  fire  limits,  etc. 

1296.  Removing  appointive  city  officer. 

1297.  Diversion  by  city  of  public  grounds. 

1298.  Enjoining  authorized  contract. 

1299.  Waste  and  misapplication. 

1300.  Misappropriation. 

1301.  Nuisance  caused  by  city,  etc. — Trespass. 

1302.  City  enjoined  by  street  railway,  etc. 

1303.  Protecting  abutting  owners. 

1304.  City  tax. 

1305.  Enjoining  village  incorporation,  etc. 

1306.  Dispensary  liquor  act — County  board  enjoined. 

1307.  Parties — Joinder  of  taxpayers. 

1308.  Jurisdiction. 

1309.  Same  subject. 

1310.  Miscellaneous. 

CHAPTER  XLV. 

Relating  to  Streets  and  Highways. 
Section  1311.  Jurisdiction— Parties. 

1312.  Taking  property  without  compensation. 

1313.  Where  there  is  a  statutory  or  adequate  remedy. 

1314.  Private  injury  versus  public  benefit. 

1315.  Complainant's  special  injury. 

1316.  Discretion  of  road  officers. 

1317.  Highway  by  prescription — Enjoining  road  officers. 

1318.  Protecting  sidewalks  and  curbing. 
1318a.  Change  of  grade  of  street. 

1319.  Sidewalk  assessments. 

1320.  Enjoining  city  from  street  nuisance. 

1321.  Sidewalk  nuisance,  etc. 
1321a.  Street  obstructions. 

1321b.  Street  encroachment? — Mandatory  injunction. 

1322.  Abating  obstructions — Relator — Estoppel. 
1322a.  Poles  and  wires  in  street. 

1322b.  Same  subject — Noncompliance  with  statutory  requirements — 

Consent  of  local  authorities. 
1322c.  Conduits  in  streets. 

1323.  Constructing  streets  on  railroad  track. 

1324.  Enjoining  opening  of  road — Defective  proceedings. 

1325.  Same  subject. 

1326.  Same  subject — In  Indiana. 

1327.  Complainant  estopped. 

1328.  Abutting  owner's  protection. 

1329.  Protecting  purchaser  of  street  lot. 

1.330.  Grantee's  right  to  removal   of  obstructions. 


Table  of  Contents.  xlv 

CHAPTER  XLVI. 

Relating  to  Corporations  Generally. 

Section  1331.  Interfering  with  corporate  business,  etc. 

1332.  Public  enterprises  favored. 

1332a.  Public  service  corporations — Discrimination. 

1333.  Suit  by  stockholders. 

1334.  Same  subject. 
1334a.  Misapplication. 

1335.  In  case  of  deviation  from  purpose  of  incorporation. 

1336.  Protecting  stockholder  from  sale  of  stock. 

1337.  Enjoining  sale  of  stockholders  stock,  etc. — Stock  certificates. 

1338.  Election  of  directors — Meetings — By-laws. 

1338a.  Fraternal  and  social  organizations — Rights  of  members — Ex- 
pulsion of. 

1339.  Expulsion  of  members  continued. 

1340.  Nuisance  by  corporation. 

1341.  Iron  Hall  Association. 

1342.  Restraining  corporate  officers  from  patent  infringement*. 

1343.  Restraining  consolidation. 

1344.  Ultra  vires — Monopoly. 

1345.  Ultra  vires — Acquiescence. 

1346.  Injunction  with  receivership — Insolvency. 

1347.  Enjoining  use  of  corporate  name. 

1348.  Protecting  corporate  officers. 

1349.  Adequate  remedy  at  law — Absence  of  injury. 

CHAPTER  XLVII. 

Relating  to  Railroad  Corporations. 

Section  1350.  Preventing  abuse  of  eminent  domain — Parties. 

1351.  Same  subject. 

1352.  Injunction  pending  condemnation. 

1353.  Same  subject. 

1353a.  Contract  giving  right  of  way — Breach  of  by  railroad  company. 

1354.  Condemning  railroad  land  by  another  company. 

1354a.  Telegraph  line  on  railroad  right  of  way — Electric  light  line, 

1355.  Company's  bond  in  doubtful  cases — Company's  discretion. 

1356.  Acquiescence. 

1357.  Landowner's  acquiescence. 

1358.  Temporary  injunction  as  part  of  seasonable  application. 

1359.  Grade  crossing  by  another  company. 

1360.  Interstate  roads — Taxation. 

1361.  Same  subject. 

1362.  Passageways  under  railroad — Crossings. 

1363.  Invalid  ordinance  in  favor  of  company. 

1364.  State  regulation  of  U.  S.  railroad. 

1365.  Railroad  on  street — Abutters'  rights. 


xlvi  Table  of  Contents. 

Section   1365a.  Same  subject  continued — Qualifications. 

1366.  Railroad  grantee's  easements. 
1366a.  Electric  street  railways  generally. 

1367.  Electric  railroads — Conflicting  franchises — Acquiescence — Cleat. 

hands. 

1368.  Municipal  control  of  tracks,  etc. — Franchise  protected. 

1369.  Trespass  on  railway  property — Crossing  tracks. 

1370.  Nuisance  by  railroad — Service  of  injunction. 

1371.  Joinder  of  injunction  and  damages — Elevated  roads. 

1372.  Appeals. 

CHAPTER  XLVIII. 

Relating  to  Public  Officers. 

Section  1372a.  Acts  in  violation  of  law. 

1372b.  Acts  in  excess  of  authority — Pure  food  commissioner. 

1373.  Political  and  ministerial  duties — State  secretary. 

1374.  Courts  versus  county  commissioners. 

1375.  County  officers — Remedy  at  law. 

1376.  Same  subject — Official  discretion. 

1377.  Same  subject — Doubtful   cases. 

1377a.  License — Power  of  official  to  revoke — Limitation  on — Moving 

picture  shows. 
1377b.  Against  police  officials  generally. 

1377c.  Against  police  officials  continued — Watching  premises. 
1377d.  Against  police  officials  concluded — Trespass  by. 

1378.  School  officers. 

1379.  Road  officers. 

1379a.  Power  of  board  of  estimate  and  apportionment  in  New  York 
city. 

1380.  Protecting  de  facto  officers — Removal  of  officers. 

1381.  Quo  warranto  instead  of  injunction — Mandamus. 

1382.  Restraining  waste  of  public  funds. 

1383.  United  States  officers. 

1383a.  State    railroad    commission — Rates — Jurisdiction    of    Federal 

court  to  join. 
1383b.  Same  subject  continued. 

1384.  Federal  restraint  of  State  officers. 

1385.  Same  subject — Where  State  is  party. 

CHAPTER  XLIX. 

Relating  to  Elections. 

Section  1.386.  Enjoining  notices  of  elections — Political  considerations. 
1386a.  Holding  of  election. 

1386b.  Canvassing  returns  and  declaring  result. 
1386c.  Matters  in  connection  with  election  generally. 
1387.  Election  returns,  etc. — Political   matters. 


Table  op  Contents.  xlvii 

Section  1388.  Enjoining  issuance  of  certificates. 

1389.  Adequate  remedy — No  injury — Contents. 

1390.  County  seat — Election  to  remove — Conflict — Annexation  of  ter- 

ritoiy  to  municipality. 

CHAPTER  L. 

Pleading  and  Practice;  Miscellaneous. 

Section  1391.  Jurisdiction. 

1392.  The  modern  mandatory  injunction. 

1393.  Temporary  injunctions  in  Minnesota. 

1394.  Abolishing  distinction  between  law  and  equity  actions — Effect. 

1395.  Injunction  and  prohibition  compared. 

1396.  Demurrable  bills. 

1397.  Bills  not  demurrable. 

1398.  General  or  joint  demurrers,  etc. 

1399.  Amending  pleadings — Federal  practice. 

1400.  Damages  as  incidental  to  injunctions — Specifications. 

1401.  Dismissal  of  bill— Plaintiff's  right  to. 

1402.  Dismissing  bill  on  dissolving  injunction — Answer  as  affidavit. 

1403.  Supplemental  bills. 

1404.  Answers — Modifying  injunction  on — Oath  waived. 

1405.  Cross  bill — Supplemental  cross  bill. 

1406.  Answer  as  cross  bill. 

1407.  Where  sufficient  equity  appears  at  the  hearing. 

1408.  Referring  questions  of  fact  to  a  jury  in  injunction  suits. 

1409.  Findings— Costs. 

1410.  Appeals. 

1411.  Appeals — Practice. 

1412.  Discharging  irregular   injunction — Appeal. 

1413.  Supreme  Court  injunctions — Mandamus. 

1414.  Liability  on  bond  for  counsel  fees — Parties  to  action. 

1415.  Damages  where  motion  to  dissolve  heard  at  trial,  etc. 

1416.  Violation  of  injunction  as  contempt. 


VOLUME  III 


Table  of  Cases. 
Index. 


I2STJTJ  NOTIONS 


CHAPTER  I. 

Definition  and  Nattjee  of  Injunctions. 

Section    1.  Injunctions  defined. 

2.  Injunctions  further  defined  and  described — Their  flexibility. 
2a.  Object  and  purpose  of  writ  or  order. 

3.  Injunctions  as  in  personam — Compared  with  attachments. 

4.  Parties'  agreement  operating  as  injunction. 

5.  Injunctions  as  affected  by  statute. 

6.  Injunction  and  receiver. 

7.  Injunctions  as  related  to  specific  performance. 

8.  Injunction  in  aid  of  attachments. 

9.  Injunction  compared  with  mandamus,  certiorari  and  quo  warranto. 
9a.  Injunction  and  prohibition  compared. 

10.  Injunction  and  damages  in  the  same  action. 

11.  Damages  in  lieu  of  injunction. 

12.  Damages  in  lieu  of  injunction — Lord  Cairn's  Act. 

13.  No  private  injunction  to  protect  public  rights. 
13a.  Same  subject — Rule  illustrated. 

14.  Clean  hands. 

15.  Same  subject — Patent  causes. 

16.  Same  subject — Where  injunction  an  evasion  of  just  dues. 

17.  Imminent  injury  as  ground  of  injunctive  relief. 

18.  Same  subject — The  Tennessee  rule. 

19.  Same  subject — Where  plaintiff  not  harmed. 

20.  Clear  violation  of  plaintiff's  right — Balancing  equities. 

21.  Where  plaintiff's  rights  are  doubtful. 

22.  Same  subject — Patent  causes. 

23.  Same  subject — Unsettled  questions  of  law. 

24.  Same  subject — Trifling  grievances. 

25.  Balance  of  convenience  in  doubtful  cases. 

26.  Adequacy  of  legal  remedy — General  rule. 

26a.  Adequacy  of  legal  remedy — What  essential  to. 
26b.  Adequacy  of  legal  remedy — Application  of  rule. 

27.  The  same  subject. 

28.  Same  subject — Further  illustrations. 

29.  Same  subject — Certiorari  and  appeal. 

30.  Injunction  not  granted  where  mandamus  is  appropriate. 

31.  Where  legal  remedy  inadequate. 


§  1  Definition  and  Nature  of  Injunctions. 

Section  32.  Adequate  remedy  in    Federal  courts. 

33.  Enjoining  trespass  and  nuisance  though  legal  remedy  exists. 

34.  Where  a  party  has  a  remedy  by  his  own  act. 

35.  Irreparable  injury  to  be  threatened — Injunction  to  prevent.* 

36.  Irreparable  injury — What  is. 

37.  Rules  illustrated  generally. 

38.  Same  subject — Public  taking  of  private  property. 

39.  Threatened  injury — Must  be  irreparable. 
39a.  Same  subject — Application  of  rule. 
39b.  Same  subject — Abating  liquor  nuisance. 

40.  Same  subject — Exceptions. 

41.  No   injunction  for  past  acts. 

41a.  Same   subject — Application   of  rule. 

42.  Laches  and  acquiescence — General   rule. 
42a.  Laches  and  acquiescence — Rule  illustrated. 

43.  Same  subject — When  laches  no  defense. 

44.  Same  subject — In  England. 

45.  Injunction  in  foreign  countries. 

46.  Effect  of  injunctions  on  statute  of  limitations. 

Section  1.  Injunctions  defined. — In  a  general  sense,  every 
order  of  a  court  which  commands  or  forbids  is  an  injunction;1 
but  in  its  accepted  legal  sense,  an  injunction  is  a  judicial  process 
or  mandate  operating  in  personam  by  which,  upon  certain  estab- 
lished principles  of  equity,  a  party  is  required  to  do  or  refrain 
from  doing  a  particular  thing.2     An  injunction  has   also  been 

1.  Woerishoffer  v.  North  River  the  exigency  of  the  icrit."  Story,  Eq, 
Const.  Co.,  99  N.  V.  398,  402,  2  N.  E.  Jur.  sec.  861.  Cited  in  United  States 
47.  See  N.  Y.  Code  Civ.  Proc.  sec.  v.  Haggerty,  116  Fed.  510,  515; 
767.  Wangelin  v.   Goe,   50    111.   459,   463; 

The  term  is  indiscriinately  ap-  see    also    Pelzer,    Rodgers    &    Co.    v. 

plied  to  interlocutory  orders  in  the  Hughe3.   27   S.   C.   408,   414,   3   S.   E. 

nature  of  injunctions  though  not  en-  781.     This  definition  has  been  gener- 

forced   by   means   of   the   writ  of    in-  ally    adopted    by   subsequent   authors 

junction.     Michigan   Cent.   R.   R.   Co.  but  in  the  State  of  New  York  wliere 

v.  Northern  Indiana  R.  R.  Co.,  3  Ind.  the    writ   of    injunction    is   abolished 

23D,  241.     Per  Smith,  J.  and  an  injunction  order  substituted, 

2.  Beach,  Mod.  Eq.  Jur.  sec.  368;  it  is  plain  that  the  word  process  doss 
Story,  hq.  Jur.  sec.  861  ;  Abbott,  Law  not  accurately  define  or  describe  the 
Diet.  tit.  Injunction.  Story  defines  temporary  injunction.  See  N.  Y. 
an  injunction  as  "  a  judicial  process  Code  I  iv.  Proc.  sees.  602,  603,  604. 
whereby  a  party  is  required  to  do  a  A  similar  state  of  things  exists  in 
particular  thing  or  to  refrain  from  several  other  of  the  states  and  in 
doing  a  particular  thing  according  to  England.     See  sec.   5,  post. 


Definition  and  Nature  of  Injunctions. 


§1 


defined  as  a  writ  framed  according  to  the  circumstances  of  the  case, 
commanding  an  act  which  the  court  regards  as  essential  to  justice, 
or  restraining  an  act  which  it  esteems  contrary  to  equity  and  good 
conscience  ;3  as  is  a  remedial  writ  which  courts  issue  for  the  pur- 
pose of  enforcing  their  equity  jurisdiction;4  and  as  a  writ  issuing 
by  the  order  and  under  the  seal  of  a  court  of  equity.5    A  similar 


Injunction    a    mandate. — It    is 

held  in  Boon  v.  McGucken,  22  N.  Y. 
Eupp.  424,  that  an  injunction  order 
is  a  mandate  within  section  14  of  the 
New  York  Code  of  Procedure  which 
empowers  courts  of  record  to  punish 
by  fine  and  imprisonment  disobedi- 
ence to  a  lawful  mandate  by  which  a 
remedy  of  a  party  to  a  civil  action 
pending  in  the  court  may  be  defeated 
or  prejudiced.  That  an  injunction 
order  is  a  mandate.  See  also  People 
v.  Dwyer,  90  N.  Y.  410.  In  the  Mary, 
land  Act  of  1886  (Code,  art.  16,  sec. 
177),  it  is  provided  that  the  court 
may  order  the  issue  of  a  "  mandate 
or  injunction "  commanding  any 
party  "  to  do  or  abstain  from  doing 
any  act."  In  this  statute  the  word 
mandate  seems  to  be  used  as  equiva- 
lent to  tne  word  injunction.  A  final 
or  perpetual  injunction  is  a  final  de- 
cree, judgment  or  sentence  and  is  con- 
sidered in  chapter  III,  post,  sees.  107, 
108. 

Statutory  and  code  definitions. 
— An  injunction  is  a  command  to  re- 
frain from  a  particular  act. 

Arkansas.— Di*.  Ark.  Stat.  1894, 
sec.  37  75. 

Indian  Territory. — Ann.  St.  Ind. 
Terr.  1899,  sec.  2487. 

Kansas. — Kan.  Gen.  Stat.  1905,  sec. 
5132. 

Nebraska.— Neb.  Ann.  Code,  1901, 
sec.  1229. 

Ohio.— Bates  Ann.  Stat.  1905,  sec. 
5571. 


Wyoming.— Rev.  Stat.  Wyo.  1899, 
sec.  4038. 

An  injunction  is  a  writ  or  order 
requiring  a  person  to  refrain  from  a 
particular  act.  It  may  be  granted  by 
the  court  in  which  the  action  is 
brought,  or  by  a  judge  thereof;  and 
when  granted  by  a  judge  it  may  be 
enforced  as  an  order  of  the  court. 
Cal.  Code  Civ.  Proc.  1903,  sec.  525, 
as  amended  by  act  approved  March 
16,  1907,  ch.  272,  sec.  1,  Stats,  and 
amend,  to  Code  of  Cal.  1907;  Idaho 
Code  Civ.  Proc.  1901,  sec.  3283;  Mont. 
Code  Civ.  Proc.  sec.  172;  Nev.  Comp. 
Laws,   1900,  sec.  3206. 

An  injunction  is  an  order  requiring 
a  defendant  in  a  suit  to  refrain  from 
a  particular  act.  Ballinger  &  Cot- 
ton's Ann.  Codes  and  Stats,  of  Ore- 
gon, 1902,  sec.  417. 

An  injunction  or  prohibition  is  a 
mandate  obtained  from  a  court  by  a 
plaintiff  prohibiting  one  from  doing 
an  act  which  he  contends  may  be  in- 
jurious to  him  or  impair  a  right 
which  he  claims.  La.  Code  of  Prac- 
tice, art.  296;  Dupre  v.  Anderson,  45 
La.  Ann.  1134.  13  So.  743. 

3.  Commercial  Bank  of  Rodney  v. 
State,  4  Sm.  &  M.  (Miss.)  439,  514, 
citing  Jeremy,  Eq.  Jurisdiction  307. 

4.  McDonogh  v.  Calloway,  7  Rob. 
(La.)    442,  444. 

5.  Michigan  Cent.  R.  R.  Co.  v. 
Northern  Ind.  R.  R.  Co.,  3  Ind.  239, 
241.     Per  Smith,  J. 


I  2  Definition  and  Nature  of  Injunctions. 

writ  to  this  was  in  use  in  the  days  of  the  Roman  Empire,  and  has 
always  been  in  use  in  England  from  the  foundation  of  the  common 
law.  It  has  been  in  use  in  this  country  since  the  organization  of 
the  government.6  Prior  to  Lord  Eldon's  time,  injunctions  were 
rarely  issued  by  courts  of  equity.  During  the  many  years  he  sat 
upon  the  woolsack  this  remedy  was  resorted  to  with  increasing 
frequency,  and  with  the  development  of  equity  jurisprudence, 
which  has  taken  place  since  his  time,  it  is  well  said  that  the  writ 
of  injunction  has  become  the  right  arm  of  the  court.7  The  writ  of 
injunction  bears  some  analogy  to  the  writs  of  prohibition  and 
estrepement  which  were  formerly  granted  by  courts  of  law  in 
cases  of  waste,  and  seems  to  have  superseded  them  in  England 
because  they  were  found  to  be  inadequate.8  But  the  writ  of 
estrepement  has  been  recognized  as  in  existence  in  Pennsyl- 
vania, and  in  1884  an  injunction  was  refused  in  that  State 
to  prevent  threatened  waste  as  it  did  not  appear  that  the 
estrepement  would  be  inadequate.9  In  the  Scotch  law,  inhi- 
bition is  an  injunctive  writ  to  restrain  sale  of  land  in 
prejudice  of  a  debt;  also  a  writ  to  prohibit  credit  being 
given  to  a  wife,  at  the  creditor's  peril.10  An  injunction  will  not 
be'  granted  where  the  wrongful  acts  sought  to  be  enjoined  affect 
reputation  merely.  Thus  a  court  of  equity  will  not  interfere  by 
injunction  to  prevent  a  master  of  a  Masonic  lodge  from  being 
suspended  from  his  office,  it  not  being  one  of  profit.11 

§  2.  Injunctions  further  defined  and  described;  their  flexi- 
bility.— Injunction  has  been  styled  the  "  strong  arm  "  of  equity 
to  be  used  only  to  prevent  irreparable  injury  to  him  who  seeks  its 
aid.12     The  writ  which  is  exclusively  an  equitable  remedy,13  goes 

6.  United  States  v.  Haggerty,  116  308.  See  Kulp  v.  Bowen,  122  Pa. 
Fed.  oin,  515.  St.  78. 

7.  Campbell  v.  Seaman,  63  N.  Y.  lO.  Abbott's  Law  Diet.  tit.  Inhibit. 
568,  582,  20  Am.  Rep.  567.  Per  Earl,  11.  Mead  v.  Stirling,  62  Conn.  586, 
J.  27  Atl.  591. 

8.  Story,  Eq.  Jur.  sec.  864;  Jeffer-  12.  MacLaury  v.  Hart,  121  N.  Y. 
son  v.  Bishop  of  Durham,  1  Bos.  &  P  636,  643.  24  N.  E.  1013. 

105,  120.  13.  Sherman  v.  Clark,  4  Nev.  138, 

9.  Leininger's  Appeal,  106  Pa.  St.       141,  97  Am.  Dec.  516. 


Definition  and  Natube  of  Injunctions. 


§2 


to  persons,  and  not  to  courts,  and  this  is  said  to  be  true  whether  it 
be  limited  to  questions  publici  juris  or  extended  to  the  adjustment 
of  private  rights.14  It  cannot  exist  in  parol,  but  must  be  reduced 
to  writing.15  This  was  the  rule  in  chancery,16  and  often  appears 
in  the  clear  implication  of  statutes.17  As  a  remedy  for  preventing 
wrongs  and  preserving  rights  the  injunction  has  been  regarded  as 
more  flexible  and  adjustable  to  circumstances  than  any  other 
process  known  to  the  law.18  The  correctness  of  this  estimate  is 
seen  in  the  readiness  with  which  injunctions  yield  to  the  con- 
venience of  parties  ;19  the  ease  with  which  damages  are  substituted 
in  their  place  when  justice  and  the  public  interest  so  require;20 
the  facility  with  which  a  preventative  and  a  mandatory  injunction 
are  made  to  co-operate  so  that  by  a  single  exercise  of  equitable 
power  an  injury  is  both  restrained  and  repaired  ;21  and  the  facility 
with  which  injunctive  relief  can  be  applied  to  new  conditions  and 
adjusted  to  the  changing  emergencies  of  modern  enterprise.22     In 


14.  State  v.  District  Court,  24 
Mont.  539,  562,  63  Pac.  395.  See  also 
Gregg  v.  Mass.  Med.  Soc,  111  Mass. 
185,  15  Am.  Rep.  24. 

15.  Kiser  v.  Lovett,  106  Ind.  325, 
327,  6  N.  E.  816. 

16.  2  Daniell  Ch.  Pr.  1672. 

17.  Ind.  R.  S.  of  1881,  sec.  1155. 

18.  Tucker  v.  Carpenter,  24  Fed. 
Cas.   No.   14,217,  Hempstead,  440. 

19.  Section  25,  post. 

20.  Sections  12,  13,  post. 

21.  Ex  parte  Chamberlain,  55  Fed. 
704.  709. 

22.  Toledo,  etc...  R.  Co.  v.  Pennsyl- 
vania Co.,  54  Fed.  746,  per  Ricks,  J.: 
"  It  is  said  the  orders  issued  in  this 
case  are  without  precedent.  Every 
just  order  or  rule  known  to  equity 
courts  was  born  of  some  emergency, 
to  meet  some  new  conditions,  and  was, 
therefore,  in  its  time,  without  a  prece- 
dent. If  based  on  sound  principles 
and  beneficent  results  follow  their  en- 
forcement,  affording  necessary   relief 


to  the  one  party  without  imposing  il- 
legal burdens  on  the  other,  new  reme- 
dies and  unprecedented  orders  are  not 
unwelcome  aids  to  the  chancellor  to 
meet  the  constantly  varying  demand 
for  equitable  relief.  Mr.  Justice 
Brewer,  sitting  in  the  Circuit  Court 
for  Nebraska,  said:  'I  believe  most 
thoroughly  that  the  powers  of  a  court 
of  equity  are  as  vast  and  its  processes 
and  procedure  are  as  elastic  as  all 
the  changing  emergencies  of  increas- 
ingly complex  business  relations  and 
the  protection  of  rights  can  demand.' 
Mr.  Justice  Blatciiford,  speaking  for 
the  Supreme  Court  in  Joy  v.  St.  Louis, 
138  U.S.I,  11  S.  Ct.  243,  34  L.  Ed. 
843,  said :  '  It  is  one  of  the  most  use- 
ful functions  of  a  court  of  equity  that 
its  methods  of  procedure  are  capable  of 
being  made  such  as  to  accommodate 
themselves  to  the  development  of  the 
interests  of  the  public  in  the  progress 
of  trade  and  traffic  by  new  methods  of 
intercourse  and  transportation.' " 


§  2  Definition  and  Natuee  of  Injunctions. 

this  connection  it  has  been  declared  that  a  writ  of  injunction  may 
be  said  to  be  a  process  capable  of  more  modifications  than  any  other 
in  the  law;  it  is  so  malleable  that  it  may  be  moulded  to  suit  the 
various  circumstances  and  occasions  presented  to  a  court  of  equity. 
It  is  an  instrument  in  its  hands  capable  of  various  applications  for 
the  purposes  of  dispensing  complete  justice  between  the  parties. 
It  may  be  special,  preliminary,  temporary,  or  perpetual ;  and  it 
may  bs  dissolved,  revived,  continued,  extended,  or  contracted;  in 
short  it  is  adapted,  and  is  used  by  courts  of  equity  as  a  process 
for  preventing  wrong  between,  and  preserving  the  rights  of  parties 
in  controversy  before  them.23  This  suppleness  of  the  injunctive 
hand  of  equity  is  shown  in  an  interesting  manner  in  a  case  in  New 
York,  where  the  Court  of  Appeals  took  advanced  ground  in  holding 
that  an  attaching  creditor  could  have  the  aid  of  an  injunction,  but 
that  the  measure  of  relief  thereby  to  be  granted  was  discretionary 
with  the  court  and  might  be  limited  to  a  decree  enjoining  interfer- 
ence with  the  attached  property  until  the  creditor's  right  to  follow 
the  attachment  with  an  execution  should  be  adjudged;  and  also, 
in  view  of  the  vital  importance  it  often  is  to  the  plaintiff  to  be  ab'e 
to  enjoin  the  defendant  at  the  very  instant  when  he  is  apprised 
an  action  is  commenced  against  him,  ruled  that  a  preliminary 
injunction  might  be  granted  before  the  issuing  of  the  summons 
but  would  not  be  operative  until  the  service  of  the  summons.24    So, 

23.   TuckeT   v.   Carnenter.   24   Fed.  great  sovere'gn  and  infallible  remedy 

C»s.    No.     14  217      TTenipst.    440.   per  — the  legal  panacea  for  every  ill  that 

Johnson,.     J.,     quoted    in     Sproat    v.  may  arise  in   the  complicated   affairs 

Durlnnd    2  Okla.  24,  43.  of  man.     But.  unfortunately,  perhaps, 

Examine  in  this  cn-mee'i'on  Shor-  the  writ  of  injunction  does  not  nos- 
man  v.  Clark  4  Nev.  138  140,  sess  these  marvelous  virtues  and  lim- 
Wnerein  it  is  said:  "The  facility  itless  powers.  Its  office  is  limited, 
witn  wliich  injunctions  have  been  ob-  and  it  is  generally  employed  only  as 
t;i inod  from  the  courts  in  this  State  an  auxiliary  remedy."  Per  Lewis  J. 
seems  to  have  made  the  application  24.  People  ex  rel.  CaufFman  v.  Van 
for  them  almost  a  matter  of  course  Buren,  136  N.  Y.  252,  32  N.  E.  775. 
in  every  conceivable  charae'er  of  a  Tn  Mansfield  Coal  &  Coke  Co.  v.  Mel- 
case.  When  the  law  appears  to  af-  Ion,  152  Pa.  St.  286.  25  Atl.  601,  the 
ford  no  specific  remedy  for  some  petty  preliminary  injunction  to  prevent 
annoyance  or  imaginary  wrong,  this  the  surface  owner  from  drilling 
writ  is  applied  for  as  if  it  were  the  through     underlying     strata    of   coal 


Definition  and  Natuee  of  Injunctions. 


§2a 


too,  if  a  party  cannot  at  once  comply  with  an  injunction  without 
being  put  to  great  expense  or  grievous  annoyance,  the  court  may 
order  that  the  injunction  do  not  commence  until  after  a,  certain 
stated  period.25 

§  2a.  Object  and  purpose  of  writ  or  order. — The  object  of  this 
writ  or  order  is  generally  protective  and  preventative,  rather  than 
restorative,  though  it  is  not  necessarily  confined  to  the  former.26 
It  is  ordinarily  used  to  prevent  wrongs  and  injuries  either  to  per- 
sons or  to  their  property.  It  may  also  in  some  cases  be  used  to 
reinstate  the  rights  of  persons  to  property  of  which  they  have  been 
deprived.  And  it  is  said  to  be  the  most  efficient,  if  not  the  only, 
remedy  to  stay  irreparable  injury,  and  to  punish  those  who  disobey 
the  order  of  a  court  granting  the  writ.27  So  in  a  case  in  New  York 
it  is  declared  that  "  The  object  of  the  process  of  injunction  is  both 
preventative  and  protective.  It  seeks  to  prevent  a  meditated 
wrong  and  not  to  redress  an  injury,  which  can  usually  be  done  only 


which  he  had  granted  to  another,  in 
order  to  reach  the  strata  under  the 
coal  which  were  his  was  partly 
granted  and  partly  denied  and  both 
plaintiff  and  defendant  were  required 
to  furnish  bonds  to  each  other  and 
was  subsequently  modified  on  defend- 
ant's giving  a  further  bond;  but  in 
Chartiers  Block  Coal  Co.  v.  Mellon. 
152  Pa.  St.  286,  25  Atl.  597,  the  limit 
of  injunctive  plasticity  was  reached 
and  the  court  declined  to  exercise  its 
jurisdiction,  leaving  the  solution  of 
the  difficulty  to  the  legislature. 

25.  Attorney-General  v.  Bradford 
Canal  Proprietors,  L.  R.  2  Eq.  71, 
where  the  injunction  was  ordered  to 
commence  eigiit  months  after  the  date 
of  the  decree.  And  in  Chapman  v. 
City  of  Rochester.  110  N.  Y.  273,  277, 
18  N.  E.  88,  6  Am.  St.  R.  366,  it  was 
left  to  the  Supreme  Court  to  say  how 
long  the  issuing  of  the  injunction 
should  be  postponed  under  the  pecu- 


liar circumstances  of  that  case. 

26.  Wangelin  v.  Goe,  50  111.  459; 
Palmer  v.  Foley,  36  N.  Y.  Super.  Ct. 
14. 

Injunction  is  a  preventive 
remedy. 

United  States. — Lacassogue  v.  Cha- 
pius.  144  U.  S.  119,  12  Sup.  Ct.  659, 
36  L.  Ed.  368. 

Illinois. — Baxter  v.  Board  of  Trad-j 
of  City  of  Chicago,  83  111.  146;  Fisher 
v.  Board  of  Trade  of  City  of  Chicago, 
80  111.  85. 

Kentucky. — City  National  Bank  r, 
Guyun,  6  Bush.  486. 

Maryland. — Washington  University 
v.  Green,  1  Md.  Ch.  97. 

New  Jersey. — Attorney-General  v. 
New  Jersey  R.  R.  &  T.  Co.,  3  N.  J. 
Eq.  136. 

South  Carolina. — Brooks  v.  South 
Carolina  R.  Co.,  8  Rich.  Eq.  30. 

27.  United  States  v.  Haggerty,  116 
Fed.  510,  515. 


§3 


Definition  and  Natube  of  Injunctions. 


at  law,  and  then  to  protect  the  party  against  any  unlawful  invasion 
of  his  rights'."  28  And  the  granting  of  an  injunction  will  not  be 
denied  on  the  ground  that  it  would  be  a  novel  application  of  the 
injunction  as  the  principle  underlying  the  right  to  this  remedy 
will  be  extended  from  time  to  time  to  meet  new  conditions  and 
emergencies.29  An  injunction  is  also  held  to  be  an  appropriate 
remedy  for  a  violation  of  all  statute  rights.30 

§  3.  Injunctions  as  in  personam ;  compared  with  attachments. 

— The  enjoinee  to  whom  an  injunction  is  addressed  must  be  within 
the  reach  of  the  court  and  must  bear  such  a  character  as  shall 
render  him  personally  amenable  to  its  jurisdiction.31  An  injunc- 
tion being  in  personam  should  not  be  granted  against  executors  on 
account  of  acts  done  by  the  testator.32  It  is  because  an  injunction 
acts  primarily  in  personam  and  not  merely  in  rem,  that  a  court  of 
equity  may,  where  a  person  against  whom  injunctive  relief  is 
sought  is  within  the  jurisdiction,  restrain  and  control  him  in  respect 
to  property,  and  to  his  acts  without  the  jurisdiction.33    Thus,  if  a 


28.  Palmer  v.  Foley.  45  How.  Prac. 
(N.   Y.)    110,    118.      Per  Monell,  J., 

quoted  in  Armitage  v.  Fisher,  4  Misc. 
R.  315,  24  N.  Y.  Supp.  650. 

29.  Nashville  C.  &  St.  L.  Ry.  Co. 
v.  McConnell,  82  Fed.  65.  The  court 
said:  "It  must  be  recognized  that 
jurisprudence,  both  legal  and  equit- 
able, both  in  respect  of  the  right  and 
the  remedy,  is  progressive,  that  it  is 
exhaustive,  and  that,  while  its  great 
principles  remain  good  for  one  time 
as  well  as  another,  these  principles 
must  be  extended  to  new  conditions, 
and  this  involves  an  extension  of  the 
remedy,  and  often  a  change  in  the 
form  of  the  remedy."    Per  Clark,  J. 

30.  Livingston  v.  Van  Ingen.  9 
Johns.  (N.  Y.)  507,  536,  wherein  it 
was  said :  "  The  remedy  is  contem- 
poraneous and  concurrent  with  the 
grant  itself,  and  cannot  be  separated 
from  it." 


31.  Thus  in  Carron  Iron  Co.  v. 
Maclaren,  5  H.  L.  416,  436,  the  court 
said :  "  If  creditors  who  can  be 
reached  here  can  be  enjoined  from 
taking  proceedings  against  a  fund 
abroad,  the  creditors  there  who  can- 
not be  reached  here  will  carry  off  all 
the  property.  The  Court  of  Chancery 
is  really  powerless  as  to  them,  since 
it  has  not  funds  in  its  own  hands, 
and  they  are  not  within  its  jurisdic- 
tion."   See  Kerr,  Injunc.  6. 

32.  Kirk  v.  Todd,  L.  R.  21  Ch.  D. 
487. 

33.  Cole  v.  Cunningham,  133  U. 
S.  107,  117,  118,  10  S.  Ct.  269.  33 
L.  Ed.  538;  Penn  v.  Lord  Baltimore, 
1  Ves.  Sen.  444  Kerr,  Injunc.  6. 
In  Phelps  v.  McDonald,  99  U.  S.  298, 
308,  25  L.  Ed.  473,  Swayne, 
J. :  "  Where  the  necessary  parties 
are  before  a  court  of  equity  it  is 
immaterial  that  the  res  of  the  contro- 


S 


Definition  and  Nature  of  Injunctions. 


§± 


court  of  equity  have  jurisdiction  of  the  person  of  defendant  it  may 
compel  him  to  discharge  an  apparent  cloud  upon  the  title  to  land 
situated  in  another  State.34  An  injunction  in  this  essentially  per- 
sonal operation  is  distinguished  from  an  attachment  which  is 
directed  primarily  against  the  property  of  defendant,  and,  if  he 
does  not  appear,  is  in  its  essential  nature  a  proceeding  in  rem,  the 
only  effect  of  which  is  to  subject  the  property  attached  to  the 
payment  of  the:  demand  which  the  court  may  find  due  to  the 
plaintiff.35 

§  4.  Parties'  agreement  operating  as  injunction. — Where  an 
injunction  order  is  procured  but  service  is  deferred  by  agreement, 
to  await  the  result  of  negotiations  for  a  settlement  of  the  contro- 
versy, it  being  agreed  that  the  rights  of  the  parties  shall  remain 
in  statu  quo  it  is  held  that  the  agreement  has  the  effect  of  an 
injunction  pendente  lite,  preserving  the  rights  of  the  parties  in 
statu  quo  pending  the  negotiations.36  And  the  enjoinor  who  has 
filed  a  bill  may  by  his  stipulation  incur  a  liability  in  respect  to 


versy,  whether  it  be  real  or  personal 
property,  is  beyond  the  territorial 
jurisdiction  of  the  tribunal.  It  has 
the  power  to  compel  the  defendant  to 
do  all  things  necessary,  according  to 
the  lex  loci  rei  sitae  which  he  could 
do  voluntarily,  to  give  full  effect  to 
the  decree  against  him.  Without  re- 
gard to  the  situation  of  the  subject 
matter,  such  courts  consider  the  equi- 
ties between  the  parties,  and  decree 
in  personam  according  to  those  equi- 
ties, and  enforce  obedience  to  those 
decrees  by  process  in  personam." 

34.  Remer  v.  Mackay,  35  Fed.  86, 
the  court :  "  This  is  a  proceeding  in 
equity  and  as  a  rule  acts  wholly  in 
personam.  It  operates  upon  the  con- 
science of  defendant  by  decreeing  hira 
to  do  or  refrain  from  doing  some 
special  act;  and  the  general  effect  and 
scope  of  a  decree  in  a  court  of  equity 
is  aimed  at  the  volition  or  conscience 


of  the  defendant.  This  court  having 
personal  jurisdiction  of  the  defendant 
in  this  case,  can  direct  its  decree 
upon  him,  and  compel  him  to  do  what 
is  equitable  and  right  under  the  cir- 
cumstances. .  .  .  The  court  is  not 
asked  to  pass  upon  the  title  to  this 
land  but  only  to  say  whether  the  de- 
fendant shall  be  compelled  to  release 
and  discharge  an  apparent  claim  upon 
title  if  the  court  shall  find  that  he  in 
equity  ought  to  do  so.  The  case  made 
by  the  bill  is  not  that  of  two  conflict- 
ing titles,  but  is  that  the  defendant 
has  attempted  to  divest  Mrs.  Remer 
of  her  title  by  a  judicial  proceeding 
which  is  void." 

35.  Cole  v.  Cunningham,  133  U.  S. 
107,  116,  10  S.  Ct.  269,  33  L.  Ed. 
538;  Cooper  v.  Reynolds,  10  Wall. 
308,  318,  19  L.  Ed.  931. 

36.  Waterman  v.  Clark,  58  Vt.  601, 
2  Atl.  578. 


9 


§5 


Definition  and  Nature  of  Injunctions. 


the  property  which  is  the  subject  of  the  injunction  quite  similar 
to  that  ordinarily  arising  from  an  injunction  bond.37  And  when 
it  is  not  fully  clear  that  plaintiff  is  entitled  to  an  injunction  to 
prevent  a.  patent  infringement  and  the  injunction  would  be 
disastrous  to  the  defendant,  he  may  sometime®  be  allowed  to 
furnish  plaintiff  a  bond  of  indemnity  instead  of  being  enjoined.38 
So  where  the  parties  to  a  suit  have  by  stipulation  deposited  funds 
in  the  hands  of  a  depository  of  the  court  an  injunction  may  lie  to 
prevent  interference  with  the  funds  by  the  defendant  pending  a 
second  suit  to  determine  the  plaintiff's  equities.39  The  parties 
cannot,  however,  by  any  contract  or  stipulation  in  advance  relieve 
the  court  from  its  duty  of  exercising  a  sound  discretion  in  all  mat- 
ters of  injunction;40  and  an  injunction  should  not  be  granted  in 
an  improper  case,  even  on  the  consent  of  both  parties,  to  the  preju- 
dice of  third  persons.41 

§  5.  Injunctions  as  affected  by  statute. — In  the  State  of  New 
York  the  writ  of  injunction  has  been  abolished  and  an  injunction 


37.  Where  one,  who  has  filed  a  bill 
to  enjoin  the  sale  of  property,  asks  to 
have  the  property  left  in  his  custody 
during  che  pendency  of  the  litigation, 
upon  terms  that  he  return  it  when  so 
ordered,  the  court  can  make  an  affirm- 
ative order  compelling  him  to  return 
or  pay  the  value  of  the  property. 
Moore  v.  Diament,  41  N.  J.  Eq.  612, 
7  Atl.  500. 

38.  Dorsey  Co.  v.  Marsh,  6  Fish. 
Pat.  Cas.  387;  Wells  v.  Gill,  6  Fish. 
Tat.  Cas.  89;  Middlings  Purifier  Co. 
v.  Christian,  4  Dill.  448;  Chipman 
v.  Wont  worth    5  Fish.  Pat.  Cas.  302. 

39.  Pending  suit  to  recover  land 
which  was  in  demand  for  settlement, 
the  parties  made  a  stipulation  agree- 
ing upon  a  special  commissioner,  sub- 
ject to  the  approval  of  the  court  to 
tuke  possession  of  and  sell  under  the 
terms  of  the  stipulation,  all  lands  in 
dispute;    and  such  commissioner  had 


in  the  depository  of  the  court  a  large 
sum,  proceeds  of  such  sales,  which, 
under  the  stipulation,  would  be  turned 
over  to  the  defendant.  The  suit  was 
dismissed  without  prejudice.  Held 
that,  as  the  bill  in  a  second  suit  to 
recover  the  land  showed  a  primary 
equity  in  such  lands  and  their  pro- 
ceeds, and  the  commissioner  was  a 
party  defendant  thereto,  an  injunc- 
tion should  be  granted  to  prevent  the 
transfer,  payment  etc.,  of  any 
moneys,  credits,  contracts,  etc.,  de- 
rived from  the  sale  of  the  land",  not- 
withstanding defendant's  alleged  pe- 
cuniary responsibility  to  pay  any  de- 
cree that  might  be  obtained.  North- 
ern Pac.  R.  Co.  v.  St.  Paul  R.  Co.,  47 
Fed.  536. 

40.  Chicago,  etc.,  R.  Co.  v.  Kansas 
City,  etc..  R.  Co..  38  Fed.  60   62. 

41.  Whelpley    v.    Erie    R.    Co.,    6 
Blatehf.  271. 


10 


Definition  and  Natuee  of  Injunctions.  §  5 

order  substituted ; **  and  this  is  also  the  case  in  Arkansas,42 
Kansas/*  Kentucky,45  Nebraska,46  North  Carolina,47  North 
Dakota,48  and  in  England  under  the  present  procedure;49  and  in 
Nova  Scotia  ;49  and  in  New  Brunswick.50  In  Nebraska,  while  the 
writ  of  injunction  has  been  abolished,  yet  it  is  deemed  that  the 
injunction  order,  when  not  granted  at  the  commencement  of  the 
action,  has  the  essential  elements  of  the  writ,  though  differing 
from  it  in  form.51  In  Wisconsin  it  is  decided  that  a  stay  of  pro- 
ceedings is  not  an  injunction  within  the  meaning  of  a  statute 
abolishing  the  writ  of  injunction  and  substituting  therefor  "  a 
command  to  refrain  from  &  particular  act."  52  The  nature  of  the 
final  injunction  in  New  York  as  a  mode  of  equitable  relief  has  not 
been  changed  by  the  Code,  and  the  cases  in  which  it  may  be  granted 
are  substantially  the  same  as  in  the  old  Court  of  Chancery  ;53  but 
the  opinion  seems  to  prevail  that  the  Code  has  enlarged  the  class 
of  cases  in  which  temporary  injunctions  may  be  granted.54  Such 
a  temporary  injunction  is  no  less  a  mandate  of  the  court  than  the 
writ  of  injunction  was.55  In  Ontario  an  injunction  may  be  granted 
under  the  Ontario  Judicature  Act  of  1881,  by  an  interlocutory 

42.  Code  Civ.  Pro.,  sec.  602;  Fel-  vision  of  chap.  212,  Laws  of  1895  al- 
lows v.  Heermans,  13  Abb.  Pr.  N.  S.  1.  lowing  an  appeal  from  an  order  which 

43.  Dig.  Ark.  Stat.  1894.  sec.  3774.  "grants,    refuses,    continues    or    dis- 

44.  Kan.  Gen.  Stat.  1905,  sec.  5132.  solves  an  injunction." 

45.  Ky.  Codes,  1899,  sec.  271.  53.  Linden    v.    Hepburn,  3  Sandf. 

46.  Neb.  Ann.  Corle,  1901.  sec.  G68;  New  York  L.  Ins.  Co.  v.  Super- 
1229;  Boyd  v.  State   19  Neb.  128.  131.  visors,  4  Duer,  192.    Duer,  J.:     "  The 

47.  Revisal  of  1905  of  No.  Car.,  code  has  not  enlarged  nor  altered  the 
sec.  80G.  power  of  the  court  to  grant  injunc- 

48.  N.  D.  Rev.  Codes,  1899.  sec.  tions,  in  those  cases  in  which  a  per- 
5343.  manent    injunction    is    the    relief   de- 

49.  Kerr,  Injunctions,  9.  manded  by  the  complaint,  but  in  such 
49a.  N.  S.  R.  S.  of  1884,  p.  927.            cases  the  right  of  the  plaintiff  to  such 

50.  N.  B.  Consol.  Stat.,  p.  397.  relief  must  still  be  determined  by  the 

51.  State  v.  Wakeley,  28  Neb.  431,  rules  of  law  that  were  in  force  when 
44  N.  W.  488.  the  code  was  enacted." 

52.  Rossiter  v.  Aetna  Life  Ins.  Co.,  54.  Merritt  v.  Thompson,  3  E.  D. 
96  Wis.  466,  71  N.  W.  898,  constru-  Smith.  283,  295;  Neustadt  v.  Joel,  2 
ing  Wis.  R.  S.,  sec.  2773.  and  hold-  Duer,  530. 

ing  also  that  an  order  denying  such  a  55.     Code    Civ.    Pro.,     sec.     3346, 

stay  is  not  appealable  under  the  pro-      subd.  2. 

11 


§  6  Definition  and  Nature  of  Injunctions. 

order  in  all  cases  in  which  it  shall  appear  to  the  court  to  be  just 
and  convenient,  and  in  cases  of  waste  or  trespass  whether  the 
enjoinee  is  in  or  out  of  possession  or  claims  the  right  to  do  the  act 
complained  of  under  color  of  title  and  whether  the  estates  claimed 
by  the  parties  are  legal  or  equitable.56  In  Oklahoma  Territory 
an  injunction  order  could  be  used  instead  of  a  writ;57  and  also  in 
the  State  of  Colorado.58  In  the  State  of  New  York  a  temporary 
injunction  is  purely  statutory  and  cannot  stand  unless  it  is  author- 
ized by  and  conforms  to  the  requirements  of  the  Code.59  Again 
Congress  having  the  control  of  interstate  commerce,  has  also  the 
duty  of  protecting  it,  and  it  is  entirely  competent  for  that  body 
to  give  the  remedy  by  injunction  as  more  efficient  than  any  other 
civil  remedy.60 

§  G.  Injunction  and  receiver— In  order  that  a  creditor  may 
have  the  benefit  of  this  combination  of  extraordinary  remedies  for 
the  enforcement  of  his  claims,  he  must  clearly  bring  himself  within 
the  letter  of  the  statute.61  Thus  though  complainant  makes  a 
prima  facie  case  of  a  fraudulent  conveyance  by  an  insolvent  firm 
of  its  property  to  a  creditor  to  the  injury  of  other  creditors,  but 

5C.  44  Vic,  chap.  5,  sec.  17.  debt  is  due,  the  remedy  is  not  avail- 

57.  Ok.  Stat,  of  1890,  sec.  5050.  able.     Ball  v.  Lastinger,  71  Ga.  678; 

58.  King  (Col.)  Rules  and  Prac-  Wilcoxon  Mfg.  Co.  v.  Atkinson,  78 
tice,  sec.   118.  Ga.  338.     Where  a  bill  was  filed  un- 

59.  Fellows  v.  Heermans,  13  Abb.  der  the  Act  of  1881,  alleging  that  the 
N.  S.  1;  Erie  R.  Co.  v.  Ramsey,  45  defendant  corporation  had  failed  to 
N.  Y.  637,  645.  pay  its  note  after  demand  of  payment 

60.  United  States  v.  Freight  Asso-  after  maturity  and  that  the  corpora- 
ciation,  166  U.  S.  290,  343,  17  Sup.  tion  was  insolvent  and  proposed  to 
Ct.  510.  41  L.  Ed.  1007.  Per  Mr.  Jus-  incur  more  debts  by  issuing  first 
tice  Peckham.  mortgage  bonds,  and  where  these  al- 

61.  The  provisions  of  Ga.  Code,  legations  were  denied  by  the  answer 
sec.  3149a,  authorizing  an  injunction  and  issue  made  as  to  the  justice  of 
and  a  receiver  in  case  of  non-payment  the  debt  and  the  insolvency,  it  was 
by  a  trader  of  a  matured  debt,  are  held  there  was  no  abuse  in  granting 
in  derogation  of  common  law.  and  an  injunction  and  appointing  a  re- 
BhoUld  be  strictly  construed.  If  the  ceiver,  especially  where  the  company's 
transaction  out  of  which  the  debt  president  was  so  appointed.  And  see 
arises  concerns  land,  and,  moreover,  Wallace  v.  Johnson,  88  Ga.  68,  13 
it  does  not  clearly  appear  that  the  S.  E.  836. 

12 


Definition  and  Nature  of  Injunctions. 


§? 


the  purchasing  creditor  is  solvent  and  able  to  respond  and  the 
complaining  creditors  are  without  judgments  or  other  liens  and 
do  not  charge  fraud  in  the  creation  of  their  demands,  a  sufficient 
case  for  an  interlocutory  injunction  and  receiver  is  not  made  out.62 
And  the  Georgia  uniformity  procedure  act  of  1887  does  not  make 
these  extraordinary  remedies  available  where  they  were  not  so 
before.63 

§:  7.  Injunctions  as  related  to  specific  performance. — The 
ground  upon  which  a  court  of  equity  gives  specific  performance 
is  generally  the  same  as  that  upon  which  it  grants  an  injunction, 
namely,  the  inadequacy  of  the  legal  remedy.64  Both  of  these  rem- 
edies seem  to  proceed  upon  the  theory  that  there  are  some  duties 
and  obligations  so  peremptory  that  tihe  obligor  ought  in  conscience 
to  be  held  to  their  performance,  and  ought  not  to  be  permitted 
to  pay  a  money  equivalent  in  damages  for  their  non-performance.05 
An  injunction  in  aid  of  specific  performance  being  merely  ancil- 
lary to  the  main  purpose  of  the  bill  or  complaint,  if  the  case  for  a 
specific  performance  as  made  out  by  the  complaint  fails,  the  plain- 
tiff cannot  have  an  injunction.66     An  intimate  relation  between 


62.  Stillwell  v.  Savannah  Grocery 
Co.,  88  Ga.  100,  13  S.  E.  963. 
The  debts  secured  by  mortgages 
greatly  exceeded  the  value  of  the 
mortgaged  property,  which  was  all 
the  property  owned  by  an  insolvent 
corporation.  Other  creditors  sued  for 
an  injunction  against  proceedings  un- 
der foreclosure  of  the  mortgages,  and 
for  the  appointment  of  a  receiver,  al- 
leging fraud  between  the  corporation 
and  the  mortgagees,  and  the  invalid- 
ity of  the  mortgages.  There  was  evi- 
dence on  defendant's  behalf  that  the 
mortgages  were  made  in  good  faith, 
and  that  all  the  mortgagees  were  en- 
tirely solvent.  Held,  that  there  was 
no  abuse  of  discretion  in  refusing  an 
injunction  and  receiver.  Metropoli- 
tan Rubber  Co.  v.  Atlanta  Rubber 
Co.,  89  Ga.  28,  14  S.  E.  896. 


63.  Stillwell  v.  Savannah  Grocery 
Co.,  88  Ga.  100,  13  S.  E.  963.  See 
DeLacy  v.  Hurst,  83  Ga.  223,  9  S.  E. 
1052. 

64.  See  Wilson  v.  Northampton, 
etc.,  R.  Co.,  L.  R.  9  Ch.  App.  279,  284. 

All  the  principles  which  apply 
to  the  case  of  a  bill  for  specific  per- 
formance apply  to  the  case  of  a  bill 
for  perpetual  injunction  when  that  in- 
junction accomplishes  all  the  objects 
which  could  be  accomplished  by  a  suc- 
cessful prosecution  of  a  formal  bill 
for  specific  execution.  Whalen  v.  Bal- 
timore &  O.  R.  Co.  (Md.  1908),  69 
Atl.  390. 

65.  Story  Eq.  Jur.,  sec.  861,  note 
(a). 

66.  Fargo  v.  New  York,  etc.,  R. 
Co.,  23  N.  Y.  Supp.  360;  Allen  v. 
Burke,  2  Md.  Ch.  534.     See  Toledo, 


13 


§  7  Definition  and  Nature  of  Injunctions. 

the  remedy  by  specific  performance  and  the  remedy  by  injunction 
appears  also  in  the  doctrine  which  is  now  well  established,  both 
here  and  in  England,  that  a  court  of  equity  may  be  unable  to 
enforce  a  certain  class  of  contracts  specifically,  but  will  negatively 
enforce  them  by  restraining  the  obligor  from  carrying  out  a  simi- 
lar contract  with  a  second  obligee.67  Thus  an  actor  who  enters 
into  a  contract  to  perform  at  a  particular  theater  for  a.  certain 
period,  cannot  be  compelled  specifically  to  perform  that  contract, 
but  he  can  be  enjoined  from  performing  at  any  other  theater 
during  the  same  period.68  Sir  Edward  Fry  speaks  of  the  injunc- 
tion as  connected  with  the  specific  performance  of  executory  con- 
tracts in  three  ways:  as  the  instrument  of  performance,  as 
incident  or  ancillary  to  the  performance,  and  as  used  for  the 
purpose  of  giving  effect  to  rights  resulting  from  non-performance 
of  the  contract.69  A  court  of  equity  will  not  generally  interfere 
by  injunction  to  restrain  the  breach  of  a  contract  for  the  sale  and 
delivery  of  chattels  which  it  could  not  compel  to  be  specifically 
performed,70  but  where  the  seller  has  been  paid  in  full  and  i3 
insolvent,  and  is  fraudulently  disposing  of  the  chattels,  an  injunc- 
tion against  him  will  lie  in  the  nature  of  specific  performance.71 
So  the  specific  performance  of  a  contract  of  lease  to  operate  a 
railroad  may  be  compelled  by  a  mandatory  injunction.72  But  an 
injunction  should  not  be  granted  in  aid  of  specific  performance 
where  no  suit  for  specific  performance  has  been  brought,  and  much 
less  where  such  a  suit  could  not  be  maintained.73 

etc..  R.  Co.  v.  Pennsylvania  Co.,  54  Chemical    Co.   v.   Hardman,    1891,   2 

Fed.  74G,  755.  Ch.  D.  416,  428. 

67.  Beach,  Modern  Eq.  Jur.,  sees.  70.    Fothergill    v.   Rowland    L.   R. 
604,   605.      See    Whitwood     Chemical  17  Eq.  132;  Heatlicote  v.  North  Staf- 
Co.  v.  Hardman,  1891,  2  Ch.  D.  416,  fordshire  R.  Co.,  2  Mac.  &  G.  112. 
428.  71.  Parker  v.  Garrison   61  111.  250; 

68.  Montague  v.  Flockton,  L.  R.  Clark  v.  Flint,  22  Pick.  (Mass.)  231. 
16  Eq.  1S9;  Daly  v.  Smith,  49  How.  72.  Schmidt  v.  Louisville  &  N.  R. 
Pr.  (N.  Y.)  150;  Duff  v.  Russell.  14  Co.,  101  Ky.  441,  19  Ky.  Law  Rep. 
N.  Y.  Supp.  134;  aff'd  133  N.  Y.  678,  666,  41  S.  W.  1015,  38  L.  R.  A.  809. 
31  N.  E.  622.  73.  At  an  auction  sale  of  lots  which 

69.  Fry,  Specific  Performance,  were  held  by  a  city  in  trust  for  the 
sees.     1114,     1135.       See     Whitwood      benefit  of  the  common  schools,  it  being 

14 


Definition  and  Nature  of  Injunctions. 


§8 


§  8.  Injunction  in  aid  of  attachments. — Where  a  lien  is  created 
in  favor  of  an  attaching  creditor  by  an  attachment  upon  property 
it  is  a  general  rule  that  an  injunction  may  be  had  to  protect  such 
lifn.74  So  where  a  debtor's  property  is  being  fraudulently  trans- 
ferred and  there  is  danger  of  its  removal  from  the  jurisdiction, 
an  equitable  action  may  properly  be  brought,  and  an  injunction 
therein  may  be  granted,  in  aid  of  and  to  enforce  the  lien  of  an 
attaching  creditor,  even  before  the  recovery  of  a  judgment  in  the 
attachment  suit  and  at  the  commencement  of  such  suit.75    But  in 


questionable  whether  the  lots  should 
be  sold  as  originally  laid  out,  or  after 
deducting  a  strip  of  land  which  the 
city  had  attempted  to  add  to  the 
Btreet  on  which  the  lots  abutted, 
plaintiffs  claimed  the  right  to  bid  for 
the  lots  as  originally  laid  out  but  the 
city  offered  only  the  diminished  lots. 
Plaintiffs  were  the  highest  bidders. 
Upon  their  refusal  to  accept  deeds  to 
the  diminished  lots,  the  city  proceeded 
to  resell  the  lots,  when  plaintiffs 
brought  a  bill  in  equity,  and  had  the 
sale  enjoined.  Held,  that  any  rights 
acquired  by  plaintiffs  by  their  pur- 
chase could  be  enforced  only  by  suit 
for  specific  performance,  and  they 
were  not  entitled  to  an  injuction  as 
an  independent  remedy.  City  of  Fort 
Smith  v.  Brogan,  49  Ark.  306.  5  S. 
W.  337.  Where  an  injunction  is 
sought  in  aid  of  an  action  for  specific 
performance,  if  the  complainant's  case 
is  strong  enough  to  render  it  at  all 
probable  that  the  complainant  may, 
on  final  hearing,  be  able  to  convince 
the  court  that  he  is  entitled  to  re- 
lief, the  court  will,  as  a  general  rule, 
award  the  writ,  but  will  refuse  it  in 
cases  where  it  appears  that  the  con- 
tract sought  to  be  enforced  has  not 
yet  been  made  or,  if  made,  that  it  is 
so  incomplete  and  uncertain  as  to  be 
unenforceable.  Domestic  Tel.  Co.  v. 
Metropolitan  Tel.,  39  N.  J.  Eq.  160. 


74.  Iowa. — Joseph  v.  McGill,  52 
Iowa,  127. 

Mississippi. — Cogburn  v.  Pollock, 
54  Miss.   639. 

Nebraska  — Northern  Knife  Co.  v. 
Shoplight,  24  Neb.  635. 

Neio  York. — People  v.  Van  Buren. 
136  N.  Y.  252.  32  N.  E.  775;  Falconer 
v.  Freeman,  4  Sandf.  Ch.  565. 

Texas. — Blum  v.  Schram,  58  Tex. 
524. 

75.  In  People  v.  Van  Buren  136 
N.  Y.  252,  32  N.  E.  775,  Maynard.  J., 
says:  "The  question  whether  the 
facts  alleged  constitute  a  cause  of 
action,  and  afford  sufficient  grounds 
for  the  equitable  interference  of  the 
Supreme  Court,  is  one  which  has 
never  been  authoritatively  determined 
by  this  court,  and  the  decisions  in  the 
courts  below  have  been  far  from  har- 
monious upon  the  subject.  There  has 
also  been  a  great  diversity  of  judicial 
opinion  upon  this  point  in  other 
States,  and  it  is  stated  in  the  Ameri- 
can and  English  Encyclopedia  of  Law 
(volume  4,  p.  575)  that  'whether  an 
equitable  suit,  analogous  to  the  cred- 
itors' suit,  will  be  allowed  in  aid  of 
the  lien  created  by  an  attachment  be- 
fore the  recovery  of  judgment  is  a 
question  to  which  the  American  courts 
have  given  directly  different  answers.' 
In  the  cases  of  Hall  v.  Stryker,  27 
N.  Y.  596,  and  Rinchey  v.  Stryker,  28 


15 


1 8 


Definition  and  Natube  of  Injunctions. 


a  case  in  Missouri  it  is  held  that  an  attaching  creditor  stands  on 
no  better  ground  than  one  who  sues  by  the  ordinary  process  of 
the  court  and  that  a  creditor  at  large,  who  has  commenced  suit 
by  attachment  for  his  debt,  but  has  not  obtained  judgment  there- 


N.  Y.  45,  it  was  held  that  under  a 
warrant  of  attachment  any  property 
of  the  debtor  transferred  in  fraud  of 
his  creditors  could  be  seized,  and  that, 
after  service  of  the  warrant,  the  party 
procuring  it  is  no  longer  to  be  deemed 
a  creditor  at  large,  but  a  creditor 
having  a  specific  lien  upon  the  goods 
attached ;  and  that  for  the  purpose  of 
upholding  the  attachment  and  the  lien 
acquired  under  it  the  decision  of  the 
judge  granting  the  warrant  is  to  be 
deemed  an  adjudication  of  the  exist- 
ence of  the  debt,  which  is  conclusive 
upon  the  fraudulent  transferee  of  the 
debtor's  property."  The  learned  judge 
next  cited  and  applied  Thurber  v. 
Blanck.  50  N.  Y.  80,  and  Bank  v. 
Dakin,  51  N.  Y.  519,  and  then  pro- 
ceeded as  follows:  "The  subsequent 
decisions  bearing  upon  the  question  in 
this  court  have  all  been  in  line  with 
the  principles  enunciated  in  these  two 
typical  case3;  but  none  of  them ,  in- 
volved the  point  here  presented,  of 
the  right  of  an  attaching  creditor  to 
prevent  the  application  of  the  at- 
tached property  to  the  payment  of  a 
prior  lien.  It  must  be  apparent  that, 
unless  such  a  right  exists,  the  remedy 
by  attachment  will  be  lost  in  many 
cases.  The  sheriff  must  sell  the  prop- 
erty under  the  prior  executions,  and 
apply  the  proceeds  to  their  payment, 
and  the  plaintiff  would  be  in  no  better 
condition  than  if  his  attachment  had 
not  issued.  It  would  seem  to  be  illog- 
ical to  accord  to  the  plaintiff  the 
right  to  attach  property  fraudulently 
1  r.insferred,  as  he  concededly  may, 
under  the  decisions  in  Hall  v.  Stryker 


and  the  other  cases  cited  above,  and 
yet  deny  him  the  right  to  have  the 
lien  preserved  until  he  can  merge  his 
claim  in  a  judgment,  and  issue  final 
process  for  its  collection.  No  ade- 
quate remedy  at  law  can  be  suggested 
in  such  a  case.  The  jurisdiction  of 
a  court  of  equity  to  reach  the  prop- 
erty of  a  debtor  justly  applicable  to 
the  payment  of  his  debts,  even  where 
there  is  no  specific  lien,  is  undoubted. 
It  is  a  very  ancient  jurisdiction,  but 
will  be  exercised  only  when  special 
circumstances  exist  requiring  the  in- 
terposition of  the  court  to  obtain  pos- 
session of  and  apply  the  property. 
Such  circumstances,  we  think,  are 
shown  to  exist  here.  The  case  would 
be  different  if  executions  had  not  been 
issued  upon  the  fraudulent  judgments. 
The  mere  existence  of  a  fraudulent 
transfer  would  not  be  sufficient  to  au- 
thorize a  Court  of  Equity  to  entertain 
an  action  at  the  suit  of  an  attaching 
creditor  to  set  it  aside.  But  when  it 
is  sought  to  make  use  of  such  a  trans- 
fer for  the  purpose  of  removing  the 
attached  property  from  the  jurisdic- 
tion of  the  officer  who  has  it  in  his 
custody,  it  is  evident  that  nothing 
but  the  equitable  arm  of  the  court 
can  prevent  the  consummation  of  the 
wrong.  In  the  case  of  Falconer  v. 
Freeman,  4  Sandf.  Ch.  565,  the  pre- 
cise point  here  involved  was  decided 
in  favor  of  the  plaintiff's  contention, 
and  the  vice  chancellor  held  that  a 
Court  of  Chancery  will  aid  an  attach- 
ing creditor  to  enforce  the  lien  of  the 
attachment  by  injunction  and  other- 
wise, on  the   same  principle  that  it 


1C 


Definition  and  Natuee  of  Injunctions. 


§9 


for,  is  not  entitled  to  invoke  the  equitable  interference  of  the  courts 
to  annul  judgments  fraudulently  confessed  by  the  debtor  in  favor 
of  other  persons,  or  to  restrain  by  injunction  the  disposal  of  the 
debtor's  property  through  the  means  of  executions  issued  on  such 
confessed  judgments.76 

§  9.  Injunction  compared  with  mandamus,  certiorari  and  quo 
warranto. — The  writ  of  injunction  may  be  regarded  as  the  cor- 
relative of  the  writ  of  mandamus;  the  one  restraining  the  per- 
formance of  an  unlawful  act,  and  the  other  requiring  the 
performance  of  a  lawful   act  or  neglected   duty.77     Injunction, 


aids  an  execution  creditor  similarly 
obstructed.  There  are  some  cases  in 
the  Supreme  Court  to  the  same  effect. 
Bates  v.  Plonsky,  28  Hun,  112; 
Keller  v.  Payne  (Sup.),  1  N.  Y.  Supp. 
148;  Tannenbaum  v.  Rosswog  (Sup.), 
6  N.  Y.  Supp.  578.  The  objection  is 
urged  that  the  creditor  may  be  un- 
successful in  establishing  his  debt  in 
the  attachment  suit,  and  it  thus  may 
be  found  that  there  was  no  basis  for 
the  equitable  action.  But  such  a  risk 
attends  all  litigation,  and  provision 
for  full  indemnity  is  made  in  the  re- 
quirements of  the  statute  for  security 
both  upon  the  issue  of  the  attachment 
and  the  granting  of  the  preliminary 
injunction.  Both  actions  are  pending 
in  the  same  tribunal,  which  can  con- 
trol the  order  in  which  they  shall  be 
tried,  and,  if  issue  is  joined  in  the 
action  at  law,  the  determination  of 
the  equitable  action  may  be  postponed 
until  the  former  has  been  finally  dis- 
posed of.  The  measure  of  relief  to  be 
granted  in  the  equitable  action  is  also 
discretionary  with  the  court,  and 
might  be  limited  to  a  decree  enjoin- 
ing interference  with  the  attached 
property  until  the  plaintiff's  right  to 
follow  the  attachment  with  an  execu- 
tion has  been  adjudged.     The  court 


therefore  had  jurisdiction  of  the 
action  in  which  the  injunction  order 
was  granted,  and  the  violation  of  its 
provisions  by  the  defendants  was  in- 
excusable." 

76.  Martin  v.  Michael,  23  Mo.  50. 

77.  Board  of  Liquidation  v.  Mc- 
Comb,  92  U.  S.  531,  541,  23  L.  Ed.  623; 
See  also  Noble  v.  Union  River  Logging 
Railroad,  147  U.  S.  165,  171,  13  S. 
Ct.  271  37  L.  Ed.  123;  Decatur  v. 
Paulding,  14  Pet.  497,  10  L.  Ed.  610. 
In  Attorney  General  v.  Railroad  Com- 
panies, 35  Wis.  425,  520,  Ryan,  C.  J., 
thus  compared  the  writs  of  injunction 
and  mandamus :  "  The  latter  com- 
mands. The  former  forbids.  Where 
there  is  nonfeasance,  mandamus  com- 
pels duty.  Where  there  is  malfeas- 
ance, injunction  restrains  wrong. 
And  so  near  are  the  objects  of  the  two 
writs  that  there  is  sometimes  doubt 
which  is  the  proper  one;  injunction  is 
frequently  mandatory,  and  mandamus 
sometimes  operates  restraint.  In 
these  very  motions  it  was  argued  on 
one  side  that  the  remedy  of  the  State 
is  by  mandamus,  on  the  other  that  it 
is  by  injunction.  And  it  is  very  safe 
to  assume  that  the  constitution  gives 
injunction  to  restrain  excess,  in  the 
same  class  of  cases  as  it  gives  man- 


17 


§9 


Definition  and  Nature  of  Injunctions. 


unless  issued  after  the  decree,  when  it  becomes  judicial,  can  only 
be  used  for  the  purpose  of  prevention,  and  protection,  and  not  for 
the  purpose  of  commanding  the  defendant  to  undo  anything  he 
had  previously  done.79  Mandamus  is  a  writ  commanding  the 
performance  of  some  act  or  duty,  therein  specified,  in  the  per- 
formance of  which  the  applicant  for  the  writ  is  interested  or  by 
the  non-performance  of  which  he  is  aggrieved  or  injured.  As  a 
simply  preventative  remedy  it  has  never  been  used.  Its  use  is 
confined  to  those  occasions  where  the  law  has  established  no 
specific  remedy,  and  where  in  justice  and  good  government  there 
ought  to  be  one.80  Injunction  is  akin  to  certiorari,  quo  warranto/2 
and  is  also  like  mandamus  in  that  it  is  an  extraordinary  remedy 
which  can  be  invoked  only  where  complainant's  right  is  clear  and 


damus  to  supply  defect;  the  use  of 
the  one  wri  or  the  other  in  each  case 
turning  solely  on  the  accident  of  over- 
action  or  shortcoming  of  the  defend- 
ant. And  it  may  be  that  where  de- 
fect and  excess  meet  in  a  single  case, 
the  court  might  meet  both,  in  its  dis- 
cretion, by  one  of  the  writs,  without 
being  driven  to  send  out  both,  tied 
together  with  red  tape,  for  a  single 
purpose." 

A  mandatory  injunction  which 
is  the  counterpart  in  equity  of 
a  mandamus  at  law  may  be  in  the 
direct  form  of  command  or  in  the 
direct  form  of  prohibiting  the  refusal 
to  do  an  act  to  which  anotner  has  a 
right.  Parsons  v.  Marye.  23  Fed. 
113,  121,  Per  Hughes   J. 

79.  Washington  University  v. 
Green,  1  Md.  Ch.  97,  101. 

80.  Legg  v.  Mayor  of  Annapolis, 
42  Md.  203,  226,  Per  Alvey,  J. 

A  mandamus  is  not  a  pre- 
ventive writ. — Its  office  is  to  put 
inferior  tribunals  or  public  persona 
in  motion.  It  commands  the  per- 
formance of  ministerial  acts,  or  being 
addressed  to  subordinate  judicial  tri- 


bunals, requires  them  to  exercise 
their  functions,  and  render  some  judg- 
ment in  cases  before  them.  People  v. 
Inspectors  and  Agent  of  the  State 
Prison,  4  Mich.  187,  190.  Per  Cope- 
land   J. 

82.  "An  injunction  is  an  extraor- 
dinary proceeding,  the  propriety  of 
the  allowance  of  which  depends  upon 
a  variety  of  circumstances,  aside  from 
the  strictly  defined  rights  of  the  com- 
plainant. In  this  respect  writs  of  in- 
junction are  akin  to  those  other  ex- 
traordinary remedies  namely,  cer- 
tiorari and  quo  warranto.  Neither 
of  these  writs  is  allowed  as  a  matter 
of  strict  right.  Whenever  public  in- 
terests may  suffer,  a  writ  of  certiorari 
may  be  refused.  The  same  rule  ap- 
plies to  writs  of  quo  warranto,  where 
the  motive  of  the  defendant  or  the 
effect  upon  public  or  private  inter- 
ests will  be  considered  in  granting  or 
refusing  the  writ.  The  allowance  of 
an  injunction  is  a  matter  of  discre- 
tion, and  an  injunction  will  not  be 
granted  if  it  will  cause  great  injury 
to  the  defendants,  without  correspond- 
ing   advantage    to    the    complainant. 


18 


Definition  and  Nature  of  Injunctions. 


§9 


there  is>  no  other  adequate  remedy.83  Mandamus  and  injunction 
are  also  similar  in  that  the  latter  will  not  be  granted  a.t  the  suit 
of  a  private  individual  for  an  invasion  of  public  rights  unless  he 
shows  some  special  injury  distinct  from  that  of  the  public84  and 
that  the  former  remedy  will  only  be  granted  at  the  suit  of  an 
individual  unless  he  has  some  particular  interest  to  be  subserved 
or  right  to  be  protected  independent  of  that  which  he  holds  in 
common  with  the  public.85  And  the  remedy  of  mandamus  is  like- 
wise similar  to  that  of  injunction  in  that  it  will  not  be  granted 
in  doubtful  cases.86  Mandamus  will  not,  however,  be  granted 
where  the  applicant's  claim  rests  merely  on  an  equitable  right.87 
And  an  injunction  will  not  lie  to  restrain  mandamus  proceedings 
if  under  them  plaintiff's  rights  can  be  fully  protected,88  nor  will 


So  it  is  perceived  that  whether  writs 
of  this  class  will  be  allowed  depends 
not  upon  the  strict  right  of  the 
parties  to  some  redress,  nor  upon  the 
question  whether  the  defendants  have 
violated  some  legal  right;  but  it  de- 
pends upon  whether,  under  the  cir- 
cumstances, this  extraordinary  pro- 
cess should  go  in  the  particular  in- 
stance." Bray  v.  Ocean  City  R.  Co. 
(N.  J.  Eq.  1897),  37  Atl.  604,  605. 
Per  Reed,  V.  C. 

Where  quo  warranto  is  in- 
effectual by  reason  of  the  period  of 
time  required  before  such  relief  could 
be  granted,  and  immediate  relief  can 
be  obtained  by  injunction,  the  latter 
remedy  is  properly  granted.  State  v. 
Louisiana  B.  G.  &  A.  G.  R.  Co.,  116 
Mo.  App.  175,  92  S.  W.  153. 

83.  State  ex  rel.  Kelley  v.  Bonnell, 
119  Ind.  494,  21  N.  E.  1101. 

84.  See  §  13  herein. 

85.  The  general  rule  is  that  a 
private  individual  can  apply  for  a 
writ  of  mandamus  only  in  a  case 
where  he  has  some  private  or  partic- 
ular interest  to  be  subserved,  or  some 
particular  right  to  be  pursued  or  pro- 


tected by  the  aid  of  this  process,  in- 
dependent of  that  which  he  holds  in 
common  with  the  public  at  large,  and 
it  is  for  the  public  officers  exclusively 
to  apply,  where  public  rights  are  to 
be  subserved."  Wellington  et  al.  Peti- 
tioners, 16  Pick.  (Mass.)  87,  105. 
Per  Shaw,  J.  Quoted  in  People  v.  In- 
spectors and  Agent  of  the  State 
Prison,  4  Mich.  187,  188. 

86.  The  writ  of  mandamus  is  one 
of  the  extraordinary  remedies  pro- 
vided by  law  and  should  never  be 
awarded  unless  the  party  applying 
for  it  shall  show  a  clear  right  to  have 
the  thing  sought  by  it  done,  and  by 
the  person  or  body  sought  to  be 
coerced.  In  doubtful  cases  it  should 
not  be  granted.  Springfield  &  Illinois 
S.  R.  Co.  v.  County  Clerk  of  Wayne 
County,  74  111.  27,  31.  Per  Scott.  J., 
citing  People  v.  Hatch,  33  111.  9; 
People  v.  Mayor  of  Chicago,  51  111.  17. 

87.  Burnsville  Turnpike  Co.  v. 
State,  ex  rel.  McCalla,  119  Ind.  382, 
20  N.  E.  421. 

88.  People  v.  Wasson,  64  N.  Y. 
167. 


10 


§9a 


Definition  and  Natuee  of  Injunctions. 


an  injunction  lie  where  the  legal  remedy  by  mandamus  is  appro- 
priate and  adequate.89 

§  9a.  Injunction  and  prohibition  compared. — A  writ  of  pro- 
hibition differs  from  an  injunction  in  that  it  acts  upon  courts  and 
not  upon  parties  and  can  issue  only  from  the  Supreme  Court;  it 
resembles  an  injunction  in  that  its  issue  depends  upon  judicial 
discretion  and  is  an  extraordinary  remedy  which  will  not  be 
granted  where  an  adequate  remedy  can  be  had  by  the  ordinary 
process  of  the  courts.  Thus  the  writ  will  not  issue  to  prevent  a 
mayor's  court  from  proceeding  in  a  matter  of  which  it  has  juris- 
diction when  the  grievance  complained  of  can  be  corrected  by 
appeal  or  certiorari.90     Prohibition  from  the  Supreme  Court  is 


89.  Commissioners  v.  School  Com'rs, 
77  Md.  283,  26  Atl.  R.  115. 

90.  State  v.  Whitaker,  114  N.  C. 
818,  19  S.  E.  376,  per  Clark,  J.  "The 
■writ  of  prohibition  existed  at  common 
law,  and  is  also  authorized  by  the 
constitutional  provision  (article  4, 
§  8),  which  gives  the  supreme  court 
'  power  to  issue  any  remedial  writs 
necessary  to  give  it  a  general  super- 
vision and  control  over  the  proceed- 
ings of  the  inferior  courts.'  In  this 
State  this  writ  can  issue  only  from 
the  Supreme  Court.  Perry  v.  Shep- 
heard  78  N.  C.  83.  The  writ  of  pro- 
hibition is  the  converse  of  mandamus. 
It  prohibits  action,  while  mandamus 
compels  action.  It  differs  from  an 
injunction,  which  enjoins  a  party  to 
the  action  from  doing  the  forbidden 
act,  while  prohibition  is  an  extraor- 
dinary judicial  writ,  issuing  to  a 
court  from  another  court  having  su- 
pervision and  control  of  its  proceed- 
ings, to  prevent  it  from  proceeding 
further  in  a  matter  pending  before 
such  lower  court.  It  is  an  original 
remfrtinl  writ,  and  is  the  remedy  af- 
forded by  the  common  law  against  the 


encroachment  of  jurisdiction  by  in- 
ferior courts,  and  to  keep  them  within 
the  limits  prescribed  by  law.  19  Am. 
&  Eng.  Enc.  Law,  263,  264;  High, 
Extr.  Rem.  §  762.  It  is  settled  that 
this  writ  does  not  lie  for  grievances 
which  may  be  redressed,  in  the  ordi- 
nary course  of  judicial  proceedings, 
by  appeal,  or  by  recordaii  or  cer- 
tiorari in  lieu  of  an  appeal.  Nor  is 
it  a  writ  of  right  granted  ex  debito 
justitiae,  like  habeas  corpus,  but  it  is 
to  be  granted  or  withheld  according 
to  the  circumstances  of  each  partic- 
ular case.  Being  a  prerogative  writ, 
it  is  to  be  used  like  all  such,  with 
great  caution  and  forbearance,  to  pre- 
vent usurpation,  and  secure  regu- 
larity, in  judicial  proceedings,  where 
none  of  the  ordinary  remedies  pro- 
vided by  law  will  give  the  desired  re- 
lief, and  damage  and  wrong  will  ensue 
pending  their  application.  High,  Extr. 
Rem.  §§  765,  770.  In  the  present  case 
the  mayor's  court  has  jurisdiction  of 
the  persons  of  the  defendants;  and  of 
the  subject-matter  which  is  the  al- 
leged violation  of  a  town  ordinance. 
If  the   ordinance  in  question   is   in- 


20 


Definition  and  Natube  of  Injunctions. 


§9a 


appropriate  to  restrain  a  lower  court's  unlawful  exercise  of  juris- 
diction over  subject  matter  of  which  jurisdiction  has  been  properly 


valid,  that  matter  can  be  determined 
on  appeal  to  the  superior  court,  and 
by  a  further  appeal,  if  desired,  thence 
to  this  court.  This  has  been  often 
done.  There  is  no  palable  usurpation 
of  jurisdiction,  or  abuse  of  it3  au- 
thority, nor  likelihood  of  injury  to 
defendants,  which  calls  for  the  ex- 
traordinary process  of  this  court,  by 
prohibition,  to  stop  the  action  of  the 
lower  court.  It  is  more  orderly  to 
proceed  in  the  regular  way, — to  have 
an  alleged  error  of  this  kind  corrected 
on  appeal.  The  writ  might  properly 
issue  where  the  court  below  has  no 
jurisdiction  of  the  subject-matter,  as, 
for  instance,  if  a  justice  of  the  peace 
should  attempt  to  try  a  defendant  for 
larceny,  or  decree  foreclosure  of  a 
mortgage;  but  even  in  that  case  it 
would  rest  in  the  discretion  of  the 
Supreme  Court  whether  the  matter 
should  be  left  to  correction  by  ap- 
peal, or  by  treating  such  judgment 
as  a  nullity.  As  to  the  denial  of  a 
jury  trial  by  the  mayor,  it  is  pointed 
out  by  Smith,  C.  J.,  in  State  v.  Powell, 
97  N.  C.  417,  1  S.  E.  482,  that 
under  the  present  constitution  ( article 
1,  §  13),  the  Legislature  is  author- 
ized to  vest  the  trial  of  petty  misde- 
meanors in  inferior  courts,  without  a 
jury,  if  the  right  of  appeal  is  pre- 
served. It  was  otherwise  under  the 
former  constitution,  under  which 
State  v.  Moss,  2  Jones  L.  66,  was  de- 
cided. The  guaranty  of  a  trial  by 
jury  in  the  sixth  and  seventh  amend- 
ments to  the  Constitution  of  the 
United  States  applies  only  to  the  fed- 
eral courts  and  is  not  a  restriction 
on  the  States,  which  may  provide  for 
the  trial  of  criminal  and  civil  cases 
in  their  own  courts,  with  or  without 


jury,  as  authorized  by  the  State  Con- 
stitution. Cooley  Const.  Lim.  (6th 
Ed.)  30;  Walker  v.  Sauvinet,  92  U. 
&  90,  23  L.  Ed.  678;  Munn  v. 
Illinois,  94  U.  S.  113,  24  L.  Ed.  77. 
There  are  instances,  though  infre- 
quent, when  this  writ  has  been  in- 
voked. It  has  been  granted  where, 
after  a  conviction  for  felony,  the 
court  has,  at  a  subsequent  term, 
granted  a  new  trial  upon  the  merits, 
without  any  legal  authority  for  so 
doing.  Quimbo  Appo  v.  People,  20  N. 
Y.  531.  It  is  also  the  appropriate 
remedy,  pending  an  appeal  from  an 
inferior  to  a  superior  court,  to  pre- 
vent the  former  from  exceeding  its 
jurisdiction  by  attempting  to  execute 
the  judgment  appealed  from,  or  to 
prevent  a  circuit  court  exceeding  its 
powers  by  issuing  an  unauthorized 
writ  of  error  and  supersedeas  to  a 
county  court,  and  interfering  improp- 
erly with  the  jurisdiction  of  the 
latter.  Supervisors  v.  Gorrell,  20 
Gratt.  484.  Also,  to  prevent  an  in- 
ferior court's  interfering  with,  or  at- 
tempting to  control,  the  records  and 
seal  of  the  superior  court  by  injunc- 
tion. Thomas  v.  Mead,  36  Mo.  232. 
It  lies  to  prevent  a  probate  court  ex- 
ercising jurisdiction  over  the  estate 
of  a  deceased  person  when  it  cannot 
lawfully  do  so.  United  States  v. 
Shanks,  15  Minn.  369,  Gil.  302.  Or 
where  justices  of  the  peace  are  pro- 
ceeding, without  authority  of  law.  to 
abate  a  supposed  nuisance,  prohibi- 
tion lies  to  stay  their  action.  Zylstra 
v.  Charleston  Corp..  1  Bay,  382. 
These  are  cited  as  illustrations,  but 
in  each  case  it  is  in  the  discretion  of 
the  Supreme  Court  whether  the  writ 
shall   be   granted.     Prohibition   doeB 


21 


§  10  Definition  and  Natube  of  Injunctions. 

acquired  by  another  court,  in  view  of  the  imminent  possibility  of 
physical  conflict  for  possession  between  the  officers  of  the  two 
courts.9* 

§  10.  Injunction  and  damages  in  the  same  action. — In  har- 
mony with  a  general  principle  of  equity  jurisprudence  which 
aims  at  complete  and  final  relief  in  a  single  action  in  respect  of 
all  matters  between  the  same  parties  growing  out  of  the  same 
general  transaction ;  and  under  section  484  of  the  New  York  Code 
of  Civil  Procedure  which  authorizes  a  plaintiff  to  unite  in  his  com- 
plaint two  or  more  causes  of  action  whether  legal  or  equitable  arising 
out  of  the  same  transaction  or  out  of  transactions  connected  with 
the  same  subject  of  action  it  has  been  decided  in  New  York  that 
a  person,  who  is  entitled  to  enjoin  a  railroad  company  from  a 
continuous  interference  with  his  rights  of  property,  may  unite 
with  his  demand  for  an  injunction  a  demand  for  damages  for  such 
interference  and  also  a  claim  for  damages  for  a  personal  injury 
caused  by  such  interference.  The  complaint  in  such  an  action  is 
not  demurrable  for  misjoinder  of  causes  of  action.92  And  though 
such  property  owners  have  ia  remedy  at  law  for  the  intrusion  upon 

not  issue  to  restrain  judicial  action  fendants  have  the  right  of  appeal.    If 

■where  the  latter  would  be  a  usurpa-  there  is  aught  in  the  charter  of  the 

tion  and  cannot  be  adequately  reme-  city  which   grants  the   defendants   a 

died  by  an  appeal.     19  Am.  &  Eng.  trial  by  jury,  if  demanded,  the  error 

Enc.  Law,  268,  269.     It  issues  to  and  in  the  refusal  could  be  corrected  by  a 

acts  upon  courts  as  an  injunction  acts  jury    trial    in    the    superior    court, 

upon  parties,  and,  like  an  injunction.  There  is  no  emergency  which  requires 

it  does  not  lie  where  adequate  remedy  the  court  to  issue  the  writ  prayed  for. 

can  be  had  by  the  ordinary  process  of  Petition   denied." 
the    courts.      When    entertained,    the  91.  State  v.  Ross,  122  Mo.  435,  25 

usual   course,   unless  prior   notice  to  S.  W.  947. 

the  petition  has  been  given,  is  to  issue  92.  Lamming  v.  Galusha,  135  N.  Y. 
a  notice  to  the  lower  court  to  show  239,  31  N.  E.  1024,  where  Andrews,  J. 
cause  why  the  writ  should  not  issue,  said :  "  But  the  question  here  is 
and  to  order  a  stay  of  proceedings  in  whether  a  plaintiff  having  a  cause  of 
the  meantime.  Id.  280,  281.  In  the  action  which  entitles  him  to  an  in- 
present  case,  if  the  defendants  are  junction  restraining  the  maintenance 
convicted  upon  an  invalid  ordinance,  and  operation  of  the  railroad  by  rea- 
there  is  ample  remedy  by  appeal.  son  of  its  continuous  interference  with 
The  Constitution  doe3  not  guaranty  a  his  rights  of  property  may  unite  with 
jury  trial  in  such  case,  since  the  de-  the  demand  for  equitable  relief  by  in- 

22 


Definition  and  Nature  of  Injunctions. 


§10 


their  rights,  yet  as  the  trespass  is  continuous  in  its  nature,  they 
can  have  an  injunction  to  prevent  a  multiplicity  of  suits,  and  can 
recover  the  damages  they  have  sustained  as  incidental  to  the  equit- 
able relief.93  So  in  a  late  case  in  New  York  it  is  decided  that  a 
court  of  equity  which  has  obtained  jurisdiction  of   an   action 


junction,  and  for  damages  for  such 
interference,  a  claim  for  damages  for 
a  personal  injury  suffered  on  a  par- 
ticular occasion  from  the  same  wrong- 
ful appropriation  and  use  of  the  high- 
way; or,  in  other  words,  whether  he 
may  unite  in  a  single  action  all  his 
claims,  legal  and  equitable,  which 
arise  in  consequence  of  the  same  gen- 
eral cause,  viz.,  the  nuisance  main- 
tained by  the  defendant.  This  is  a 
question  of  procedure  governed  by  the 
course  and  practice  of  the  court,  or 
by  the  statute,  if  made  the  subject  of 
statute  regulation.  We  are  of  opinion 
that  the  causes  of  action  were  prop- 
erly united  under  section  484  of  the 
Code  of  Civil  Procedure,  which  au- 
thorizes the  plaintiff  to  unite  in  his 
complaint  two  or  more  causes  of  ac- 
tion, whether  such  as  were  formerly 
denominated  legal  or  equitable  or 
both,  in  the  cases  specified;  and 
among  others :  '  Subd.  9.  Upon 
claims  arising  out  of  the  same 
transaction,  or  transactions  connected 
with  the  same  subject  of  action,  and 
not  included  within  one  of  the  fore- 
going sub-divisions.'  The  subject  of 
the  action  in  this  case  was  the  injury 
committed  by  the  defendant  in  main- 
taining a  public  nuisance  which  sub- 
jected the  plaintiff  to  injuries  speci- 
fied, viz.,  injury  to  real  property,  and 
personal  injury.  The  injuries  were 
distinct  in  character,  and,  while  the 
injury  to  the  real  property  was  con- 
tinuous, the  physical  injury  was  con- 
summated when  first  inflicted.  But 
they    both    proceeded,    in    a    general 


sense,  from  the  same  wrong — the  un- 
lawful obstruction  of  the  highway  by 
the  defendant;  and  they  were  all,  we 
think,  '  transactions  connected  with 
tne  same  subject  of  action.'  within 
the  meaning  of  section  483  and  may 
properly  be  redressed  in  a  single  ac- 
tion. This  conclusion  is  in  harmony 
with  the  general  principle  of  equity 
jurisprudence,  which  aims  at  com- 
plete and  final  relief  in  a  single  action 
in  respect  of  all  matters  between  the 
same  parties,  growing  out  of  the  same 
general  transaction.  It  is  supported 
by  the  significant  language  of  the 
court  in  Chapman  v.  City  of  Roch- 
ester, 110  N.  Y.  276,  18  N.  E.  88, 
which  was  an  action  to  restrain  the 
pollution  of  a  stream  and  for  dam- 
ages. Danforth.  J.,  said:  'Moreover, 
the  plaintiff  is  found  to  have  sus- 
tained a  special  injury  to  his  health 
and  property  from  the  same  cause, 
and  we  find  no  reason  to  doubt  that 
he  is  entitled,  not  only  to  compensa- 
tion for  damages  thereby  occasioned, 
but  also  to  such  judgment  as  will  pre- 
vent the  further  perpretation  of  the 
wrong  complained  of.'  See,  also, 
Shepard  v.  Railway  Co.,  117  N,  Y. 
442,  23  N.  E.  30.  These  views  lead 
to  a  reversal  of  the  judgment  of  the 
General  Term  and  an  affirmance  of  the 
judgment  of  the  Special  Term,  with 
costs."     All  concur. 

93.  Shepard  v.  Manhattan  R.  Co., 
117  N.  Y.  442,  448,  23  N.  E.  30; 
Henderson  v.  N.  Y.  Central  R.  Co.,  78 
N.  Y.  423;  Williams  v.  N.  Y.  Central 
R.  Co.,  16  N.  Y.  97. 


23 


§11  Definition  and  Nature  of  Injunctions. 

brought  by  a  land  owner  to  restrain  the  continuance  of  a  nuisance, 
and  for  damages,  alleged  to  be  caused  by  the  maintenance  and 
operation  of  a  plant  for  the  production  of  electric  light  and  power, 
may  retain  the  case,  although  it  is  found  that  the  nuisance  was 
abated  at  the  time  of  the  trial  and  that  it  was  improbable  that 
any  would  be  created  in  the  future,  and  may  determine  whether 
the  plaintiff  is  entitled  to  any  damages.94  And  in  another  recent 
case  in  this  State  it  is  decided  that  the  complaint  of  a  single  plain- 
tiff in  equity  to  restrain  the  continuance  of  a  nuisance  created  by 
the  separate  acts  of  several  defendants  is  not  demurrable  on  the 
ground  of  multifariousness  because  it  unites  with  tbe  cause  for 
equitable  relief  one  for  damages  already  suffered.95  In  Pennsyl- 
vania, too,  where  plaintiff's  right  to  an  injunction  to  restrain  a 
continuing  trespass  is  established,  an  account  of  damages  previ- 
ously sustained  follows  as  an  incident,  and  to  avoid  multiplicity  of 
suits.96  And  one  of  two  adjoining  owners  or  tenants  may  enjoin 
the  other  from  continuing  a  nuisance,  and  as  auxiliary  and  sub- 
sidiary   relief    may    ask    for    damages    already    caused    by    the 


§11.  Damages  in  lieu  of  injunction. — A  court  of  equity  has 
power  by  injunction  to  enforce  covenants  in  a  conveyance  restrict- 
ing the  use  of  land  conveyed  to  certain  specific  purposes,  or 
prohibiting  the  erection  thereon  of  certain  specified  structures;98 
and  such  negative  easements  may  be  reciprocal  and  created  by 
conveyances  in  severalty  to  different  grantees  of  an  entire  tract, 

94.  Miller  v.  Edison  Elec.  Ilium.  injunction  to  restrain  a  threatened 
Co.,  184  N.  Y.  17,  76  N.  E.  734,  rev'g  additional  trespass  may  be  joined  and 
97  App.  Div.  638    89  N.  Y.  Supp.  1059.  an  objection  that  they  are  not  separ- 

95.  Burghen  v.  Erie  Railroad  Co.,  ately  stated  cannot  be  reached  by  de- 
123  App.  Div.  (N.  Y.)  204,  108  N.  Y.  murrer  on  ground  of  misjoinder  but  by 
Supp.  311.  motion  only  unless  the  failure  to  state 

96.  Walters  v.  McElroy.  151  Pa.  them  separately  renders  the  complaint 
St.  549;   Allison's  Appeal,  77  Pa.  St.  ambiguous  or  unintelligible. 

221 ;  Souder's  Appeal,  57  Pa.  St.  498.  97.  Boston    Ferrule    Co.    v.    Hills, 

See,    also,   Jacob   v.    Lorenz,   98    Cal.  159  Mass.   147,  34  N.  E.  85. 

332,  33  Pac.  119,  where  it  was  held  a  98.  Columbia   College   Trustees   v. 

cause   of   action    for    damages    for   a  Lynch.  70  N.  Y.  440. 

trespass  and  a  cause  of  action  for  an  See  Chap.  XV.  herein. 

24 


Definition  and  Nature  of  Injunctions. 


§11 


and  they  may  be  created  by  a  reservation  in  a  conveyance,  by  a 
condition  annexed  to  a  grant,  by  a  covenant,  and  even  by  a  parol 
agreement  of  the  grantee."  But  where  there  has  been  such  a 
change  in  the  character  of  the  neighborhood  as  to  defeat  the 
objects  and  purposes  of  the  restricting  covenants,  reservations  or 
conditions,  and  to  render  it  inequitable  to  deprive  a  grantee  or 
his  successors  in  title  of  the  privilege  of  conforming  his  property 
to  that  character,  injunctive  relief  will  not  be  granted,  and  in  lieu 
thereof,  damages  may  be  allowed  in  the  action  for  the  injunction 
in  order  to  avoid  multiplicity  of  suits.1  It  is  also  well  settled  in 
New  York  that  an  abutting  owner  may  maintain  a  suit  in  equity  to 
enjoin  a  railroad  company  from  operating  its  road  in  front  of  his 
premises,  unless  it  first  pays  him  the  damages  he  will  thus  sustain 
from  the  permanent  interference  with  his  easements  of  light,  air 
and  access;2  and  also  in  a  proper  case  both  pay  him  damages  for 


99.  Curtiss  v.  Ayrault,  47  N.  Y.  73; 
Tallmadge  v.  East  Riv.  Bank.  26  N. 
Y.  105;  Gilbert  v.  Peteler,  38  Barb. 
(N.  Y.)  488,  affd  38  N.  Y.  165. 

1.  Amerman  v.  Deane,  132  N.  Y. 
355,  30  N.  E.  741,  distinguishing  Pond 
v.  Metropolitan  El.  R.  Co.,  112  N.  Y. 
186.  19  N.  E.  487,  and  Uline  v.  N.  Y. 
Central  &  H.  R.  R.  Co.,  101  N.  Y.  98, 
4  N.  E.  536,  which  were  actions  at 
law  for  damages.  See,  also,  Columbia 
College  v.  Thatcher,  87  N.  Y.  311. 
Also,  Orne  v.  Fridenberg.  143  Pa.  St. 
487,  22  Atl.  832  where  there  had  been 
such  a  change  in  the  neighborhood 
and  character  and  purposes  of  the  im- 
provements as  were  deemed  sufficient 
to  justify  the  Chancellor  in  refusing 
the  injunction. 

2.  Bohm  v.  Metropolitan  El.  R.  Co., 
129  N.  Y.  576;  29  N.  E.  802;  Ameri- 
can Bank  Note  Co.  v.  New  York  El. 
R.  Co.,  129  N.  Y.  352,  29  N.  E.  302; 
Mitchell  v.  Metropolitan  El.  R.  Co., 
132  N.  Y.  552,  30  N.  E.  385;  Roberts 
v.  New  York  El.  R.  Co.,  128  N.  Y. 
455,  28  N.  E.  486.  In  Woolsey  v.  New 
York  El.  R.   Co.,  134  N.  Y.  323,  31 


N.  E.  891,  which  was  an  action  to 
recover  damages  caused  by  the  erec- 
tion and  maintenance  by  defendants 
of  an  elevated  railroad  in  front  of 
plaintiff's  premises,  and  to  restrain 
defendants  from  operating  their  road 
in  front  thereof  unless  the  fee  dam- 
ages were  paid,  it  appeared  that  be- 
fore the  action  was  begun  plaintiff 
requested  defendants  to  acquire  their 
easements  by  condemnation.  Pro- 
ceedings for  that  purpose  were  begun 
after  the  action  was  commenced,  and 
the  next  day  after  the  trial  commis- 
sioners were  appointed.  After  the 
trial,  the  parties  by  stipulation  asked 
the  court  to  find  the  value  of  the 
property  taken,  so  that  by  payment 
thereof  an  injunction  could  be  avoided. 
In  this  case  it  was  held  that  an  in- 
junction was  properly  granted  sub- 
ject to  such  payment,  and  that  a  re- 
fusal of  the  court  to  direct  that  the 
injunction  should  become  operative 
only  in  case  defendant  failed  to  ac- 
quire the  easements  by  condemnation 
was  not  error. 


25 


§12 


Definition  and  Nature  of  Injunctions. 


past  interference,  and  also  damages,  called  fee  damages  for  the 
permanent  interference  with  such  easements  in  the  future.8 

§  12.  Damages  in  lieu  of  injunction;  Lord  Cairn's  Act. — 
Where  there  is  jurisdiction  to  grant  an  injunction,  damages  may 
be  given  under  Lord  Cairn's  Act,  instead  of  granting  the  injunc- 
tion, for  an  injury  which  has  occurred  since  the  commencement 
of  the  action;4  but  where  an  action  is  brought  for  an  injunction 
in  respect  of  a  threatened  injury  and  no  actual  wrong  has  been 
committed  by  the  defendant,  the  court  has  no  jurisdiction  under 
Lord  Cairn's  Act  to  give  damages  in  substitution  for  such  injunc- 
tion.5 In  awarding  damages  instead  of  granting  an  injunction 
the  court  must  exercise  a  sound  discretion,  and  not  allow  defendant 
at  his  convenience  to  do  a  wrongful  act  on  payment  of  damages 
therefor.6  If  the  injury  complained  of  is  trifling,  the  court  may 
well  exercise  its  discretion  by  awarding  damages  in  place  of  an 


3.  Gerber  v.  Metropolitan  El.  R. 
Co.,  23  N.  Y.  Supp.  166. 

4.  Warwick,  etc.,  Canal  v.  Burman, 
63  L.  T.  670. 

5.  Dreyfus  v.  Peruvian  Guano  Co., 
L.  R.  43  Ch.  D.  316. 

6.  Smith  v.  Smith,  L.  R.  20  Eq. 
500,  where  Jessel,  M.  R.  said:  "Thus 
what  difference  was  introduced  by 
Lord  Cairn's  Act?  Before  the  Act  it 
was  matter  of  right  to  obtain  the  in- 
junction. By  that  Act  the  court  had 
a  discretion  to  substitute  damages 
where  it  thought  proper.  Now  this 
discretion  must  be  a  judicial  discre- 
tion exercised  according  to  something 
like  a  settled  rule,  and  in  such  a  way 
as  to  prevent  the  defendant  doing  a 
wrongful  act  and  thinking  he  could 
pay  damages  for  it.  Without  laying 
down  any  absolute  rule,  in  the  first 
place  it  is  of  great  importance  to  see 
if  the  defendant  knew  he  was  doing 
wrong,    and    was    taking    his    chance 


about  being  disturbed  in  doing  it. 
.  .  .  In  the  present  case  the  in- 
jury was  most  serious  to  plaintiff  and 
he  could  not  be  compensated  without 
the  defendant  buying  the  house,  while, 
as  regards  the  defendant,  I  am  not 
satisfied  that  any  considerable  sum 
has  been  laid  out  on  his  buildings. 
Again  the  plaintiff  was  occupier  of 
the  house,  so  that  it  was  a  personal 
injury  to  him.  Taking  all  the  cir- 
cumstances together,  therefore,  I 
think  that  I  have  no  right  to  say  that 
the  plaintiff  is  to  give  up  the  house 
and  take  pecuniary  compensation  for 
it,  because  it  is  more  convenient  to 
the  defendant.  I  shall  grant  a  man- 
datory injunction  in  accordance  with 
the  terms  of  the  prayer,  and  follow- 
ing the  order  made  in  Jessel  v.  Chap- 
lin, 2  Jur.  (N.  S.)  931,  direct  that 
it  is  not  to  operate  for  two  months, 
and  the  defendant  to  pay  the  costs  of 
the  suit." 


26 


Definition  and  Nature  of  Injunctions.     §§  13, 13a 

injunction,7  but  should  ordinarily  enjoin  an  injury  of  a  serious 
nature.8  In  order  that  damages  should  be  an  adequate  substitute 
for  an  injunction,  they  must  cover  as  well  the  damages  for  wrong- 
ful acts  continued  up  to  the  time  of  trial,  as  for  those  which  had 
taLen  place  before  the  issue  of  the  injunction.9 

§  13.  No   private  injunction   to   protect   public   rights. — An 

injunction  will  not  be  granted  on  the  application  of  a  private  per- 
son to  protect  purely  public  rights,10  and  much  more  a  private 
injunction  will  not  be  granted,  except  in  cases  of  great  urgency, 
which  will  interfere  with  public  improvements.11  So  in  a  case  in 
Indiana  it  is  said  that  the  authorities  "  without  exception,  both 
in  England  and  America,  deny  to  a  private  person  an  injunction 
for  an  invasion  of  the  public  right  where  the  bill  or  complaint  fails 
to  show  a  special  injury  to  the  complainant."  12 

§  13a,  Same  subject;  rule  illustrated. — In  the  application  of 


7.  Holland  v.  Worley,  L.  R.  26  Ch. 
J).  578.  In  deciding  between  damages 
and  an  injunction  the  court  will  con- 
sider the  plaintiff's  acquiescence.  Say- 
ers  v.  Collyar,  L.  R.  28  Ch.  D.  103. 

8.  Krehl  v.  Burrell,  L.  R.  7  Ch.  D. 
651,  11  Ch.  D.  146;  Greenwood  v. 
Hornsey,  L.  R.  33  Ch.  D.  4/1. 

9.  Fritz  v.  Hobson,  L.  R.  14  Ch.  D. 
543. 

10.  Colorado. — Vickery  v.  Wilson 
(Colo.  1907),  90  Pac.  1034. 

Illinois. — Springer  v.  Walters,  139 
111.  419,  28  N.  E.  761;  McDonald  v. 
English,  85  111.  236. 

Kansas. — Ruthstrom  v.  Peterson,  72 
Kan.  679,  83  Pac.  825. 

Nebraska. — Lee  v.  McCook  (Neb. 
1908),  116  N.  W.  955. 

New  Jersey. — Atlantic  City  G.  &  W. 
Co.  v.  Consumers  G.  &  F.  Co.  (N.  J. 
1907),  65  Atl.  1119. 

The  right  to  hunt  wild  fowl  on 
tlie  navigable  waters  of  a  State  is  a 


right  the  exercise  of  which  a  court  of 
equity  will  protect  by  restraining  in- 
terference therewith.  Ainsworth  v. 
Munoskong  Hunting  &  F.  Co.  (Mich. 
1908),  116  N.  W.  992. 

11.  Booraem  v.  North  Hudson  R. 
Co.,  40  N.  J.  Eq.  557,  5  Atl.  106. 

12.  Landes  v.  Walls,  160  Ind.  216, 
66  N.  E.  679.     Per  Gillett.  J.,  citing 

4  Blacks.  Comm.  167;  McCowan  v. 
Whitesides,  31  Ind.  235;  Cummins  v. 
City  of  Seymour.  79  Ind.  491.  41  Am. 
Rep.  618;  Indiana,  Bloomington  &  W. 
R.  Co.  v.  Eberle,  110  Ind.  542,  11  N. 
E.  467,  59  Am.  Rep.  225;  Manufac- 
turers Gas  &  Oil  Co.  v.  Natural  Gas  & 
Oil  Co.,  155  Ind.  566.  58  N.  E.  851, 
55  L.  R.  A.  768;  Doolittle  v.  Supervis- 
ors.  18  N.  Y.  155;    People  v.  Stevens, 

5  Hill  (N.  Y.).  616;  State  v.  Lord  28 
Oreg.  498,  43  Pac.  471,  31  L.  R.  A. 
473;  State  v.  Cunningham,  83  Wis. 
90,  53  N.  W.  35,  35  Am.  St.  Rep.  27, 
17  L.  R.  A.  145. 


27 


§  13a         Definition  and  Nature  of  Injunctions. 

the  rule  stated  in  the  preceding  section  it  has  been  determined  that 
an  abutting  owner  cannot  maintain  an  action  to  enjoin  the  main- 
tenance of  an  obstruction  in  a  street  caused  by  the  location  therein 
of  a  portion  of  an  elevated  railway  station  where  he  had  no  inter- 
est in  the  soil  occupied  by  it,  and  sustains  no  substantial  injury 
by  reason  of  the  encroachment,  to  any  right  appurtenant  to  his 
premises,  since  an  individual  citizen  cannot  maintain  an  action  to 
abate  a  public  nuisance  unless  he  is  especially  injured,  and  a  mere 
abstract  right  will  not  be  protected  by  injunction.13  And  a  gas 
company  will  not  be  restrained  at  the  suit  of  a  rival  company 
from  laying  its  mains  in  a  street  in  violation  of  the  provisions  of 
a  statute  regulating  the  laying  of  such  mains  where  the  complain- 
ant fails  to  show  some  special  damage  sustained  or  threatened.14 
So  a  complaint  to  enjoin  defendant  from  transporting  natural  gas 
through  pipes  at  a  pressure  in  excess  of  that  allowed  by  statute 
is  insufficient  where  it  is  not  shown  that  the  plaintiffs  sustain  any 
Bpecial  injury  peculiar  to  themselves  by  reason  of  the  violation  of 
the  act  aside  from,  and  independent  of,  the  general  injury  to  the 
public.15  Again,  while  courts  of  equity  have  a  well  settled  juris- 
diction in  matters  of  trusts,  and  public  office  may  well  be  regarded 
as  a  public  trust,  yet  an  individual  cannot  by  injunction  restrain 
the  abuse  or  enforce  the  execution  of  a  public  trust,  unless  he  can 
show  some  peculiar  interest  therein;  for  the  beneficiary  of  a  public 
trust  is  the  public  and  not  an  individual.16     Nor  can  a  private 

13.  Adler  v.  Metropolitan  El.  R.  perform  a  public  duty  at  the  suit  of  a 
Co.,  138  N.  Y.  173,  52  N.  Y.  St.  160,  private  individual  without  some  spe- 
33  N.  E.  935.  cial  right  or  authority.'     In  no  case 

14.  Atlantic  City  Gas  &  W.  Co.  v.  has  it  ever  been  held  that  a  private 
Consumers'  Gas  &  F.  Co.  (N.  J.  Eq.),  individual  may  maintain  a  bill  to  en- 
61  Atl.  750.  join  a  breach  of  public  trust  without 

15.  Manufacturers  Gas  &  Oil  Co.  v.  showing  that  he  will  be  specially  in- 
Indiana  Natural  Gas  &  Oil  Co.,  155  jured  thereby.  See  Bigelow  v.  Hart- 
Ind.  566,  58  N.  E.  851.  ford     Bridge     Co.,     14     Conn.     565; 

16.  In  Chicago  v.  Union  Building  O'Brien  v.  Norwich,  etc.,  R.  Co..  17 
Assoc'n,  102  111.  370.  the  court  thus  Conn.  372;  Delaware,  etc..  R.  Co.  v. 
reviewed  the  decisions:  "The  general  Stump,  8  Gill  &  J.  470;  Paul  v.  Car- 
doftrine,  according  to  Bispham's  Prin-  ver.  24  Pa.  St.  207.  Indeed  in  a  num- 
ciples  of  Equity.  2d  ed.,  p.  512,  is:  'A  ber  of  the  States,  the  courts  have  ex- 
corporation    cannot    be    compelled    to  pressly  denied  the  right  of  a  private 

28 


Definition  and  Natube  of  Injunctions.         §  13a 

individual  have  public  officers  enjoined  from  using  public  funds 
unless  it  can  be  shown  that  some  civil  or  property  rights  are  being 
invaded  or  in  other  words  that  the  individual  will  sustain  some 
special  injury  by  the  transaction.17     And  it  is  declared  that  the 
general  rule  is  that  when  the  duty  about  to  be  violated  by  a  public 
corporation  or  its  officers  is  public  in  its  nature  and  affects  all  the 
inhabitants  alike,  one  not  suffering  any  special  injury  cannot  in 
his  own  name,  or  by  uniting  with  others,  maintain  a  bill  for  an 
injunction.    A  private  individual  cannot  maintain  a  bill  to  enjoin 
a  breach  of  a  public  trust  without  showing  that  he  will  be  specially 
injured  thereby.     Where  no  injury  results  to  the  individual,  the 
public  alone  can  complain.     Hence,  in  the  declaration  or  bill  the 
party  complaining  must  allege  and  prove  some  special  damage, 
different  in  kind  and  degree  from  that  suffered  by  the  general 
public.18     To  avoid  multiplicity  of  suits,  however,  and  to  obtain 
■  final  relief  a  private  person  may  enjoin  a  public  nuisance,  if  it  is 
continuous  and  peculiarly  injures  his  person  or  his  property;19 
but  the  injury  must  be  distinct  from  that  which  he  suffers  in  corn- 
taxpayer  to  have  restrained  a  threat-      shown  in  Chicago  v.  Rumsey,  87  Til. 
ened  illegal  municipal   act  that  will       355,  and  People,  etc..  v.  Walsh.  96  111. 
result  in  increased  taxation,   holding      232,    strictly    accurate.      In    the    last 
that  the  only  remedy  therefor  must      named  case  we  said:    'The  city  as  the 
be  sought  through  those  representing      agent  or  representative  of  the  public 
the  public.     Doolittle  v.  Supervisors,       holds  the  fee  for  the  use  of  the  pub- 
18  N.  Y.  155;  Roosevelt  v.  Draper.  23      lie — not  the  citizens  of  the  city  alone, 
N.    Y.    318;    Conklin    v.    Com'rs,    13       but   the  eutire  public — of  which  the 
Minn.  454;  Bagg  v.  Detroit,  5  Mich.      legislature  is  the  representative."' 
336;  Chaffee  v.  Granger,  6  Mich.  51.  17.  State  v.  Lord.  28  Oreg.  498,  507, 

Counsel  contend  that  it  is  well   set-       43  Pac.  471,  31  L.  R.  A.  473. 
tied    that    city    authorities  hold  the  18.  Cicero  Lumber  Co.  v.  Town  or 

streets  in  trust  for  the  benefit  of  all  Cicero.  176  111.  9,  51  N.  E.  758,  68 
the  corporators  and  among  other  cases  Am.  St.  Rep.  155.  42  L.  R.  A.  696, 
refer  to  Carter  v.  Chicago,  57  111.  283;  citing  City  of  Chicago  v.  Union 
Chicago  v.  Wright,  69  111.  318;  Dun-  Building  Ass'n,  102  111.  379;  Barrows 
ham  v.  Hyde  Park,  75  111.  371;  Brush  v.  City  of  Syracuse.  150  111.  588,  37 
v.  Carbondale,  78  111.  74.  The  general  N.  E.  1096;  Field  v.  Barling,  149  111. 
expression  in  these  cases,  that  the  city  556,  37  N.  E.  850 ;  Smith  v.  Mc- 
holds  the  streets  in  trust  for  the  bene-  Dowell,  148  111.  51,  35  N.  E.  141. 
fit  of  all  the  corporators,  though  ac-  19.   Lamming  v.  Galusha,   135  N. 

curate  enough  in  its  application  to  the      Y.  239,  243,  31  N.  E.  1024. 
facts  there  involved  is  not  as  we  have 


§14 


Definition  and  Natube  of  Injunctions. 


mon  with  the  rest  of  the  public.20  And  the  principle  is  said  to  be 
settled  that  the  objection  that  the  nuisance  is  a  common  one  is  not 
available  if  it  be  shown  that  special  damage  is  suffered.21 

§  14.  Clean  hands. — In  accordance  with  a  favorite  maxim  of 
equity  jurisprudence,  that  he  who  applies  for  equity  must  also 
have  done  it,  a  party  applying  for  an  injunction  must  come  into 
a  court  of  equity  with  clean  hands  and  a  clear  conscience.22  Thus, 
where  a  land  owner  lowers  the  ditch  on  his  land  and  makes  lateral 
drains  and  thereby  causes  water  to  flow  into  the  ditch  which  does 
not  naturally  belong  there,  and  to  flood  defendant's  lower  land, 
and  defendant  digs  up  a  part  of  the  ditch  in  order  to  stop  such 
flooding,  the  former  is  not  entitled  to  a  mandatory  injunction  to 
compel  defendant  to  restore  the  ditch  to  its  former  condition  be- 
cause he  is  not  free  from  wrong  himself  in  relation  to  the  matter 


20.  O'Brien  v.  Norwich,  etc.,  R. 
Co.,  17  Conn.  372;  Bigelow  v.  Hart- 
ford Biidge  Co.,  14  Conn.  565,  30 
Am.  TVe.  502. 

21.  Crawford  v.  Tyrrell,  128  N. 
Y.  341,  344,  citing  Rose  v.  Miles,  4 
M.  &  S.  101 ;  Rose  v.  Groves,  5  Man. 
&  G.  013;  Francis  v.  Schoellkopf.  53 
N.  Y.  152;  Lansing  v.  Smith,  4  Wend. 
(N.  Y.)  9.  See  State  v.  Wheeling  & 
Belmont  Bridge  Co..  13  How.  (U.  S.) 
518;  Cronin  v.  Bloemecke,  58  N.  J. 
Eq.  313,  43  Atl.  605,  holding  that  an 
injunction  will  be  granted  at  the  suit 
of  an  individual  where  there  is  a 
gathering  of  disorderly  persons  to 
witness  ball  games,  where,  although 
the  gathering  is  a  public  nuisance,  it 
causes  annoyance  and  injury  to  the 
complainant. 

22.  In  Joseph  v.  Macowsky,  96  Cal. 
518.  31  Pac.  914,  the  plaintiff  was 
denied  an  injunction  because  he  had 
represented  the  razors  in  question  to 
be  manufactured  in  Sheffield,  Eng- 
land, when  in  fact  he  did  not  know 
where  nor  by  whom  they  were  manu- 


factured. "  It  is  a  general  rule  of 
law,  in  cases  of  this  kind,  that  courts 
of  equity  will  not  interfere  by  injunc- 
tion, where  there  is  any  lack  of  truth 
in  the  plaintift's  case;  that  is  where 
there  is  any  misrepresentation  in  his 
trade-mark  or  labels."  Siegert  v.  Ab- 
bott, 61  Md.  284.  See  also  Palmer  v. 
Harris.  60  Pa.  St.  156;  Hobbs  v. 
Francais.  19  How.  Pr.  571;  Fetridge 
v.  Merchant,  4  Abb.  Pr.  156;  Browne 
on  Trade-Marks,  sees.  71,  474.  Where 
medicine  was  manufactured  by  plain- 
tiff in  New  York  another  trade-mark 
declared  that  it  was  manufactured  by 
another  person  in  Massachusetts,  it 
was  held  that  plaintiff  was  not  enti- 
tled to  an  injunction  against  a  per- 
son using  the  same  trade-mark  in 
Maine.  Manhattan  Medicine  Co.  v. 
Wood,  108  U.  S.  218,  2  S.  Ct.  436, 
27  L.  Ed.  706.  See  also,  Connell  v. 
Reed,  128  Mass.  477;  Seabury  v. 
Grosvenor,  14  Blatch.  262;  Pidding  v. 
How,  8  Simons,  477;  Leather  Cloth 
Co.  v.  American,  etc.,  Co.,  11  H.  L. 
Cas.  523. 


30 


Definition  and  Natube  of  Injunctions.  §  15 

in  which  he  seeks  equitable  relief.23  And  a  person  who  has  bor- 
rowed money  of  a  savings  institution,  upon  his  promissory  note, 
secured  by  a  pledge  of  bank  stock,  is  not  entitled  to  an  injunction 
to  prevent  the  prosecution  of  the  note,  on  the  ground  that  the  sav- 
ings bank  was  prohibited  by  its  charter,  from  making  loans  of 
that  description.24  In  accordance',  however,  with  the  rule  that  a 
court  of  equity  having  acquired  jurisdiction  for  one  purpose  will 
entertain  it  for  all  purposes,  it  may,  where  it  has  acquired  juris- 
diction of  a  whole  tract  of  land,  afford  injunctive  relief  as  to  a  part 
thereof,  as  to  which,  if  it  were  alone,  the  relief  might  be  refused  by 
reason  of  the  manner  in  which  plaintiff  acquired  it.25  And  it 
is  no  legal  bar  to  the  injunction  that  the  plaintiff  may  have 
acquired  his  title  from  collateral  motives,  and  very  recently  before 
the  work  or  conduct  complained  of  began  or  was  to  begin.26 

§  15.  Same  subject;  patent  causes. — The  courts  of  the  United 
States,  which  are  authorized  to  grant  injunctions  in  patent  causes 
according  to  principles  of  equity,  will  not  grant  one  to  a  complain- 
ant, who,  after  long  delay,  makes  his  application  for  an  injunction 
at  a  particular  juncture  when  it  will  greatly  embarrass  the  alleged 
infringer,  whereas  if  the  application  had  been  made  promptly  such 
special  injury  to  the  infringer  would  have  been  avoided.27 

23.  McAllister  v.  Henderson,  134  26.  Savannah  &  Western  R.  R.  Co. 
Ind.  453,  34  N.  E.  221 ;  Jones  v.  Ew-  v.  Woodruff.  86  Ga.  94,  13  S.  E.  156. 
ing.  107  Ind.  313,  6  N.  E.  819.  27.  Ney  Mfg.  Co.  v.  Superior  Drill 

24.  Mott  v.  United  States  Trust  Co.,  56  Fed.  152,  per  Sage.  J.:  "A 
Co..  19  Barb  (N.  Y. )  568.  second  reason  for  overruling  this  mo- 

25.  Where  land,  title  to  which  had  tion  is  that  the  complainant  waited 
been  adjudicated,  consisted  of  a  tract  nearly  two  months  after  filing  its 
embracing  several  lots,  and  complain-  bill,  and  until  it  must  have  known 
ants  were  in  possession  of  the  whole  that  the  defendant  would  be  stocked 
thereof.  Held,  that  the  fact  that,  as  up  with  a  full  supply  for  the  year's 
to  a  portion  of  one  lot,  their  posses-  business,  which  is  practically  over  at 
sion  was  obtained  by  violence,  would  the  close  of  the  haymaking  season, 
not  prevent  equity  from  affording  re-  and  then  presented  its  motion  for  an 
lief  as  to  the  whole  tract,  including  injunction.  The  courts  of  the  United 
that  lot;  jurisdiction  having  attached  States  are  vested  with  power  to  grant 
by  reason  of  the  rightful  possession  injunctions  in  patent  causes  accord- 
of  the  other  portions.  Pratt  v.  Ken-  ing  to  the  course  and  principles  of 
dig,  21  N.  E.  495,  128  111.  293.  equity.    It  is  not  according  to  equity 

31 


§16 


Definition  and  Nature  of  Injunctions. 


§  16.  Same  subject ;  where  injunction  an  evasion  of  just  dues. 
— In  illustration  of  the  rule  that  a  party  applying  for  an  injunc- 
tion must  come  with  clear  hands,  it  has  been  repeatedly  decided 
in  the  Federal  Supreme  Court  that  an  injunction  should  not  be 
granted  to  restrain  the  collection  of  a  tax  on  the  ground  of  exces- 
sive valuation  and  discrimination,  unless  the  part  of  the  tax  which 
is  clearly  due  has  been  paid  or  tendered,  for  otherwise  the  injunc- 
tion would  be,  as  in  fact  it  has  often  proved  to  be,  a  vexatious 
means  of  delaying  the  payment  of  a  just  demand.28     So  a  person 


for  a  complainant  to  delay  the  asser- 
tion   of    his    right    to    an    injunction 
until  the  time  when  it  will  most  em- 
barrass   and    injure    the   respondent. 
Such  a  proceeding  savors  of  a  dispo- 
sition to  use  the  right  of  a  patentee 
to  oppress  an  alleged  infringer,  or  to 
force   him   into  a   position   where  he 
may    be    compelled    to    incur    heavy 
losses  or   to  yield  to  hard  demands. 
The  granting  or  withholding  of  a  pre- 
liminary    injunction     is     within    the 
proper  discretion  of  the  court.    It  will 
be  withheld  when  apparently  sought 
for  the  purpose  of  obtaining  an  undue 
advantage.       It    has    been    withheld 
when,  in  the  opinion  of  the  court,  it 
would    be    used    for    the    purpose    of 
creating  mischief   (Neilson  v.  Thomp- 
son. 1  Webst.  Pat.  Cas.  275),  or  when 
it  would    give    the    complainant  the 
means     of     coercing     a     compromise 
(Parker  v.   Sears,    1    Fish.   Pat.   Cas. 
93),  and  so  I  think  it  should  be  here, 
where  the  result  of  granting  it  now 
would  do  more  harm  to  the  respond- 
ents  than    good   to   the   complainant, 
whereas,   if  the  application  had  been 
made   promptly,   special   harm  to   the 
respondents        would        have        been 
avoided." 

See  chap.  XXVII  herein  as  to  in- 
junction generally  in  case  of  infringe- 
ment of  patents. 


28.  Albuquerque  Nat.  Bank  v. 
Perea,  147  U.  S.  87,  13  Sup.  Ct.  194, 
37  L.  Ed.  91,  where  Brewer,  J.,  said: 
"  With  respect  to  the  taxes  of  18S9, 
there  was  no  payment  or  tender  of  pay- 
ment of  any  amount.  Plaintiff  seeks  to 
avoid  the  necessity  therefor  by  alleg- 
ing that  it  is  impossible  to  separate 
the  legal  from  the  illegal  portions  of 
the  taxes,  an  allegation  which  is  mani- 
festly untrue  in  view  of  the  fact  that 
it  had  no  difficulty  in  making  the 
separation  in  the  taxes  of  1888,  the 
assessment  for  which  was  paid  in  a 
similar  way,  and  in  view  of  the  fur- 
ther fact  that  it  must  have  known 
what  property  it  had  which  was  sub- 
ject to  taxation  as  well  as  its  value, 
and,  therefore,  the  rate  of  taxation 
being  fixed  by  law,  it  could  of  course 
have  known  what  amount  was  un- 
doubtedly due.  The  rule  in  respect  to 
this  matter  is  perfectly  well  settled  in 
this  court.  In  State  Railroad  Cases  92 
U.  S.  575,  616,  23  L.  Ed.  663,  it  was 
fully  considered.  In  that  case  it  was 
said  by  Mr.  Justice  JVihler  speaking 
for  the  court:  '  It  is  a  profitable  thing 
for  corporations  or  individuals  whose 
taxes  are  very  large  to  obtain  a  pre- 
liminary injunction  as  to  all  their 
taxes,  contest  the  case  through  sev- 
eral years  litigation,  and  when  in  the 
end  it  is  found  that  but  a  small  part 


32 


Definition  and  Nature  of  Injunctions. 


§17 


seeking  to  prevent  the  enforcement  at  law  of  usurious  contracts 
must  show  that  he  has  paid  or  tendered  the  amount  justly  due.29 
On  the  same  principle  it  is  enacted  in  Illinois  that  "  only  so  much 
of  any  judgment  at  law  shall  be  enjoined  as  the  complainant  shall 
show  himself  equitably  not  bound  to  pay."  30 

§  17.  Imminent  injury  as  ground  of  injunctive  relief. — A  mere 
possibility,  or  anything  short  of  a  reasonable  probability  of  injury 
to  plaintiff  is  insufficient  to  warrant  an  injunction  in  his  favor.31 


of  the  tax  should  be  permanently  en- 
joined, submit  to  pay  the  balance. 
This  is  not  equity.  It  is  in  direct 
violation  of  the  first  principles  of 
equity  jurisdiction.  It  is  not  suffi- 
cient to  say  in  the  bill  that  they  are 
ready  and  willing  to  pay  whatever 
may  be  found  due.  They  must  first 
pay  what  is  conceded  to  be  due,  or 
what  can  be  seen  to  be  due  on  the 
face  of  the  bill  or  be  shown  by  affida- 
vits, whether  conceded  or  not,  before 
the  preliminary  injunction  should  be 
granted.  The  State  is  not  to  be  thus 
tied  up  as  to  that  of  which  there  is 
no  contest  by  lumping  it  with  that 
which  is  really  contested.  If  the 
proper  officer  refuses  to  receive  a  part 
of  the  tax,  it  must  be  tendered  and 
tendered  without  the  condition  an- 
nexed of  a  receipt  in  full  of  all  the 
taxes  assessed." 

See  chap.  XVI  herein  as  to  injunc- 
tion against  taxes  generally. 

29.  Morgan  v.  Schermerhorn,  1 
Paige  (N.  Y.),  544;  Fanning  v.  Dun- 
ham, 5  Johns.  Ch.  (N.  Y.)  122;  Rog- 
ers v.  Rathbun,  1  Johns.  Ch.  (N.  Y.) 
367;  Tupper  v.  Powell,  1  Johns.  (N. 
Y.)    439. 

30.  111.  R.  S.  1889,  p.  796. 

See  chaps.  XXI-XXIV  herein  as  to 
injunctions  against  judgments  gener- 
ally. 

31.  International  R.  Co.  v.  Record- 


ing F.  R.  Co.,  151  Fed.  199,  80  C.  C. 
A.  475. 

United  States. — Lake  Erie  &  W. 
R.  Co.  v.  Fremont,  92  Fed.  721,  34 
C.  C.  A.  625;  Atkinson  v.  Philadel- 
phia &  T.  R.  Co.,  Fed.  Cas.  No.  7,285, 
1   Cranch  C.  C.  443. 

California. — Lorenz  v.  Waldron,  96 
Cal.  243,  31  Pac.  54. 

Connecticut. — Goodwin  v.  New 
York,  N.  H.  &  H.  R.  Co.,  43  Conn. 
494;  Bigelow  v.  Hartford  Bridge  Co., 
14  Conn.  565    36  Am.  Dec.  502. 

Florida. — Ruge  v.  Apalachicola 
Oyster  C.  &  F.  Co.,  25  Fla.  656,  6  So. 
489. 

Georgia. — Hart  v.  Atlanta  T.  Co., 
128  Ga.  754,  58  S.  E.  452;  McCaskill 
v.  Bower,  126  Ga.  341,  54  S.  E.  942; 
Rounsaville  v.  Kohlheim,  68  Ga.  668. 
45  Am.  Rep.  505. 

Illinois. — Springer  v.  Walters,  139 
111.  419,  28  N.  E.  761;  Blatchford  v. 
Chicago  Dredging  &  D.  Co.,  22  111. 
App.  376. 

Kansas. — Hurd  v.  Atchison,  T.  & 
S.  F.  Ry.  (Kan.  1906),  84  Pac.  553; 
Emerson  v.  South  Fork  Irrig.  &  I. 
Co.,  59  Kan.  778,  53  Pac.  756;  City 
of  Hutchinson  v.  Delano,  46  Kan.  345, 
26  Pac.  740. 

Kentucky. — Louisville  &  N.  R.  Co. 
v.  McVean,  17  Ky.  Law  Rep.  1283,  34 
S.  W.  525. 

Louisiana. — Roudanez    v.    City    of 


?>?, 


§17 


Definition  and  Nature  of  Injunctions. 


So  it  has  been  declared  that  the  mere  apprehension  of  some  future 
acts  of  a  wrongful  nature,  which  might  be  injurious  to  the  plain- 
tiffs, is  not  a  sufficient  basis  for  insisting  upon  the  preventive 


New  Orleans,  29  La.  Ann.  271;  La- 
meyer  v.  Rouzan,  8  La.  280. 

Mississippi. — McCutchen  v.  Blan- 
ton,  69  Miss.  116. 

Missouri. — McLemore  v.  Meheley, 
66  Mo.  App.  556. 

Nevada. — Sherman  v.  Clark,  4  Nev. 
138,  97  Am.  Dec.  516. 

New  Jersey. — Van  Der  Plaat  v. 
Undertakers  &  Liverymen's  Assn. 
(N.  J.  1905),  62  Atl.  453;  Delaware 
&  R.  Canal  Co.  v.  Camden  &  A.  R. 
Co.,  15  N.  J.  Eq.  13;  Lutheran  Church 
v.  Maschop,  10  N.  J.  Eq.  57. 

New  York. — Union  Cemetery  Ass'n 
v.  City  of  Buffalo,  124  N.  Y.  88,  26 
N.  E.  330;  Genet  v.  Delaware  &  H. 
Canal  Co.,  122  N.  Y.  505,  25  N.  E. 
922;  Thomas  v.  Mutual  Musical  Pro- 
tective Union,  121  N.  Y.  45,  24  N.  E. 
24,  8  L.  R.  A.  175;  Griffith  v.  Dodg- 
son,  103  App.  Div.  542,  93  N.  Y. 
Supp.  155;  Russell  &  Sons  v.  Stamp- 
ers &  Gold  L.  L.  Union,  107  N.  Y. 
Supp.  303;  McCabe  v.  Emmons,  51  N. 
Y.  Super.  Ct.  219;  Bean  v.  Pettengill, 
30  N.  Y.  Super.  Ct.  7 ;  Baucus  v.  Al- 
bany Northern  R.  Co.,  8  How.  Prac. 
70. 

Ohio. — Commercial  Bank  v.  Bow- 
man, 1  Handy,  246;  Sargent  v.  Ohio 
&  M.  R.  Co.,  1  Handy,  52. 

Pennsylvania. — Sweeny  v.  Torrence, 
11  Pa.  Co.  Ct.  R.  497;  Germantown 
Water  Co.  v.  McCallum,  5  Phila.  93. 

Tennessee. — Moore  v.  Hallum,  1 
Lea,  511;  White  v.  Schurer,  4  Baxt. 
23. 

Texas.— Kerr  v.  Riddle  (Civ. 
App.).  31   S.  W.  328. 

Wisconsin. — City  of  Janesville  v. 
Carpenter,    77    Wis.    288,    46    N.    W. 


128,  20  Am.  St.  Rep.  123,  8  L.  R.  A. 
808. 

In  Lorenz  v.  Waldron,  96  Cal. 
243,  31  Pac.  54,  it  was  decided  that 
the  owner  of  a  water  ditch  con- 
structed along  a  mountain  side  on 
land  of  the  United  States,  though  en- 
titled to  right  of  way  with  vertical 
and  lateral  support,  could  not  enjoin 
a  locator  of  a  mining  claim  from  tun- 
neling into  the  side  of  the  mountain, 
forty-six  feet  under  the  ditch,  where 
their  rights  were  not  controverted  and 
no  reasonable  probability  appeared 
that  the  ditch  would  be  injured  by 
the  excavation. 

In  the  valuable  case  of  Genet  v. 
Delaware  &  H.  Canal  Co.,  122  N.  Y. 
505,  529,  25  N.  E.  922,  the  court  said: 
"  There  is  no  finding  of  any  injury 
and  no  proof  of  any  so  far  as  I  am 
able  to  find.  But  from  the  opinion  of 
the  learned  referee  it  appears  that 
the  injury  is  one  anticipated  rather 
than  sustained.  It  would  not  be  fair 
or  proper  to  call  it  a  threatened  in- 
jury, as  that  could  not  be  said  where 
the  means  employed  to  remove  the 
water  are  more  than  adequate  and 
had  never  failed.  But  it  is  said  that 
if  the  pumps  should  break  down,  or 
a  strike  occur,  the  pumping  would 
stop  and  the  mine  be  flooded.  Such 
remote  possibilities  which  belong  to 
the  category  of  accidents,  are  hardly 
sufficient  to  be  made  the  basis  of  an 
application  for  the  exercise  of  the 
great  power  of  a  court  of  equity.  In- 
jury material  and  actual,  not  fanci- 
ful or  theoretical,  or  merely  possible, 
must  be  shown  as  the  necessary  or 
probable  result  of  the  action  sought 


Definition  and  Nature  of  Injunctions.  §  17 

remedy  of  a  final  injunction,  as  such  a  remedy  becomes  a  necessity 
only  when  it  is  perfectly  clear  upon  the  facts  that,  unless  granted, 
the  complainant  may  be  irreparably  injured  and  that  he  can  have 
no  adequate  remedy  at  law  for  the  mischief  occasioned.32  So  to 
entitle  a  plaintiff  to  an  injunction  against  public  officers  to  control 
their  action  he  must  not  only  show  a  clear  legal  and  equitable  right 
to  the  relief  demanded,  or  to  some  part  of  it,  and  to  which  the 
injunction  is  essential,  but  also  that  some  act  is  being  done  by  the 
defendants  or  is  threatened  and  imminent,  which  will  be  destructive 
of  such  right,  or  cause  material  injury  to  him.  A  state  of  things 
from  which  the  plaintiff  apprehends  injurious  consequences  to 
himself,  but  which  neither  actually  exists  nor  is  threatened  by  the 
defendants,  nor  is  inevitable,  is  not  a  sufficient  ground  for  an 
injunction.33  And  a  court  of  equity  will  not  interfere  by  injunc- 
tion with  a  plan  of  improvements  adopted  in  good  faith  by  muni- 
cipal authorities  and  within  the  scope  of  their  authority,  where 
injury  therefrom  is  doubtful  or  contingent.  To  justify  such  an 
interference,  it  must  be  shown  that  actual  injury  is  the  probable 
result.34  But  where  a  public  officer,  under  color  of  office  and  pro- 
visions of  a  statute,  threatens  to  do  an  act  which  will  inflict  per- 

to    be    restrained,"    citing    People    v.  plaint    is    held    to    be    properly   dis- 

Canal  Board.  55  N.  Y.  390,  397.  missed.      Brown  v.   Cole,    105   N.   Y. 

Where,    in    an    action    to    re-  Supp.  197. 

strain  the   connty  committee   of  32.  Reynolds  v.  Everett,  144  N.  Y. 

a  political  party  from  putting  into  189,    194,    195,    39    N.    E.    72.       Per 

operation   certain    rules    and    regula-  Gray.  J. 

tions,  it  appears  upon  the  trial  that  33.  People  v.  Canal  Board,  55  N. 
the  time  during  which  the  defendant  Y.  390,  394.  Per  Allen,  J. 
is  alleged  to  have  threatened  to  put  34.  Morgan  v.  Binghamton,  102  N. 
such  rules  and  regulations  into  force  Y.  500,  7  N.  E.  424,  where  the  Court 
had  passed,  that  there  had  been  no  of  Appeals,  reversing  the  judgment 
effort  to  put  them  in  force,  that  the  of  the  General  Term,  dissolved  the  in- 
primaries  had  been  held  and  con-  junction  on  the  following  grounds, 
ducted  in  the  usual  manner,  and  that  which  appear  in  the  opinion  of  Finch, 
neither  party  claims  to  have  any  in-  J. :  "  The  findings  plainly  disclose 
terest  in  the  cause  of  action  at  the  two  characteristics  of  this  appre- 
time  of  trial  and  it  does  not  appear  hended  danger.  It  is  not  imminent, 
that  the  rules  objected  to  are  in  and  it  is  wholly  contingent  and  not 
force  or  that  the  defendant  threat-  inevitable.  No  immediate  danger  ex- 
ens  to  put    them    in    force,  the  com-  ists.    It  is  found  to  be  possible  within 

35 


§17 


Definition  and  Nature  of  Injunctions. 


manent  damage  to  another's  property,  the  owner  is  not  bound  to 
wait  until  the  defendant  has  actually  committed  the  threatened 
act  but  may  at  once  invoke  the  equitable  interference  of  the  courts 
to  restrain  such  act,  on  establishing  that  he  does  not  come  within 
the  provisions  of  the  statute  under  which  the  officer  claims  to  act.36 
A  mere  threat,  however,  is  not  ordinarily  a  sufficient  ground  for 
an  injunction.36    There  must  be  a  well  grounded  apprehension  of 


one  or  two  years  but  not  certain  to 
occur  sooner  than  in  three  years. 
Every  finding  which  prognosticates 
threatened  evil  is  qualified  by  the 
phrase  '  in  time '  which  limits  it  to 
some  indefinite  future  period;  and 
when  the  findings  seek  to  fix  that, 
they  postpone  it  as  a  certain  danger 
for  three  years.  But  they  leave  it 
men  merely  a  contingency  depending, 
as  the  findings  express  it,  upon  the 
condition  that  the  branch  sewers 
'  should  be  mainly  used  by  the  inhab- 
itants '  of  the  adjoining  streets.  No- 
body knows  when  they  will  be  so 
'  mainly  used.'  Houses  which  have 
their  own  cess-pools  and  privy  vaults 
may  not  for  many  years  be  fitted 
with  modern  closets  and  sewer  con- 
nections. Such  improvements  are  be- 
ginning to  be  questioned  for  their 
own  evils  and  dangers,  and  may 
come  slowly,  and  no  evidence  or  find- 
ing indicates  the  probable  period. 
The  contingency  as  to  time  is  further 
made  to  '  depend  very  much  upon  the 
quantity  of  water  used  in  the  sewer.' 
The  twenty-sixth  finding  of  the  trial 
judge  explicitly  declares  that  '  the 
pernicious  effects  of  the  depositing  of 
sewer  matter  at  this  point  and  the 
time  when  such  will  be  felt  are  de- 
pendent upon  various  uncertain  fu- 
ture events;'  and  this  shows  that  the 
evil  itself  as  well  as  the  date  of  its 
appearance  are  alike  contingent  and 


not  inevitable.  The  danger,  therefore, 
which  can  alone  support  this  injunc- 
tion is  in  the  air  of  an  uncertain  and 
indefinite  future.  Its  possible  coming 
rests  upon  opinion  and  speculation. 
It  is  both  doubtful  and  remote.  See 
also  People  v.  Canal  Board,  55  N.  Y. 
397;  Salomons  v.  Knight  (1891),  2 
Ch.  D.  294." 

35.  Flood  v.  Van  Wormer,  147  N. 
Y.  284,  41  N.  E.  569. 

36.  Bond  v.  Wool,  107  N.  C.  139, 
12  S.  E.  281.  A  threat  to  infringe, 
such  as  justifies  an  injunction,  is  not 
made  by  a  manufacturer  offering  to 
do  work  for  a  railroad  company  and 
furnish  everything  required  except 
certain  patented  signals,  and,  upon 
the  refusal  of  his  offer,  offering  to 
furnish  such  signals  for  a  certain  ad- 
ditional sum  and  withdrawing  such 
proposal  in  a  day  or  two,  since  the 
only  justifiable  inference  is  that  he 
intended  to  procure  such  signals  by 
lawful  means.  Johnson  Signal  Co.  t. 
Union  Switch  Co.,  55  Fed.  487. 
Equity  will  protect  the  rights  of  an 
equitable  owner  of  an  interest  the 
legal  title  to  which  is  in  assignees  in 
bankruptcy,  from  threatened  injury. 
Williams  v.  Wadsworth,  51  Conn. 
277. 

Examine  Piro  v.  Shipley.  211  Pa. 
St.  36,  60  Atl.  325,  holding  that  a 
threatened  injury  with  a  clear  right 
of  the  complainant  will  be  enjoined. 


30 


Definition  and  Nature  of  Injunctions. 


§18 


immediate  injury  to  plaintiff.37  And  it  has  been  decided  that  to 
justify  the  granting  of  an  injunction  as  a  provisional  remedy  under 
the  New  York  Code,  it  must  appear  that  defendant  threatens  to 
do  some  act  in  violation  of  plaintiff's  rights  respecting  the  subject 
of  the  action  and  tending  to  render  the  judgment  ineffectual.38 

§  18.  Same  subject  continued. — In  a  case  in  Tennessee  it  is 
decided  that  on  an  application  for  a  preliminary  injunction  all 
that  the  judge  should  generally  require  is  a  case  of  probable  right 
and  probable  danger  to  that  right  without  the  interposition  of  the 
court,  and  that  his  discretion  should  then  be  regulated  by  the 
balance  of  inconvenience  or  injury  to  the  one  party  or  the  other. 
Thus  where  ihe  complainants1  sought  to  enjoin  a  judgment  at  law 
upon  the  ground  that  the  note  on  which  it  was  recovered  had  been 
given  in  consideration  of  the  sale  to  them  by  the  defendant  of  the 
right  to  manufacture  a  particular  medicine,  and  that  they  had 
been  induced  to  buy  the  right  by  the  vendor's  false  representation 


37.  Atlantic  Water  Co.  v.  Con- 
sumer's Water  Co.,  44  N.  J.  Eq.  427; 
Potter  v.  Saginaw  Union  St.  Ry.  Co., 
83  Mich.  285,  47  N.  W.  217;  Hutchin- 
son v.  Delano  (Kan.),  26  Pac.  740; 
Cheshire  Mills  v.  Gowing,  62  N.  H. 
618;  Ruge  v.  Apalachicola  Oyster 
Canning  &  Fish  Co.,  25  Fla.  656,  6 
So.  489;  Crawford  v.  Bradford.  23 
Fla.  404,  2  So.  782;  Dorsey  v.  Allen, 
85  N.  C.  358 ;  Hall  v.  Rood  40  Mich. 
49;  McMenomy  v.  Baud,  87  Cal.  139; 
Hoke  v.  Perdue,  62  Cal.  545;  Sher- 
man v.  Clark,  4  Nev.  142.  It  not  ap- 
pearing that  defendant  had  mala  fide 
and  clandestinely  set  about  to  ap- 
propriate the  invention,  and  it  not 
appearing  probable  from  his  past 
conduct  that  he  would  attempt 
to  use  the  infringing  articles 
in  the  future,  and  there  being 
nothing  to  indicate  that  such  ar- 
ticles could  be  readily  used  sur- 
reptitiously,  to   the   injury    of    com- 


plainant, defendant  will  not  be  re- 
quired to  deliver  them  over  to  com- 
plainant to  be  destroyed,  in  addition 
to  the  relief  ordinarily  granted. 
American  Bell  Tel.  Co.  v.  Kitsel,  35 
Fed.  521. 

38.  Bagaley  v.  Vanderbilt,  16  Abb. 
N.  C.  359;  New  York,  etc.,  R.  Co.  v. 
New  York  etc.,  R.  Co.,  11  Abb.  N.  C. 
386.  Plaintiff,  a  foreign  corporation, 
organized  for  the  purpose  of  collect- 
ing news  and  furnishing  the  same  to 
the  newspapers,  cannot  maintain  an 
action  to  restrain  an  unincorporated 
association  engaged  in  the  same  busi- 
ness from  enforcing  a  rule  that  its 
members  should  take  no  news  from 
other  new3  agencies;  the  association 
not  being  governed  by  any  corporate 
duty,  and  owing  no  duty  to  plaintiff, 
which  was  attempting  to  compete 
with  it.  Dunlap's  Cable  News  Co.  v. 
Stone,  15  N.  Y.  Supp.  2. 


37 


18 


Definition  and  Nature  of  Injunctions. 


that  he  was  the  discoverer  of  the  active  agent  in  the  compound, 
and  alleged  that  the  defendant  was  insolvent,  the  Chancellor, 
though  of  the  opinion  that  complainants  were  not  injured  by  the 
representation,  even  if  false,  yet  granted  the  injunction  because  of 
the  irreparable  loss  which  might  follow  the  collection  of  the  judg- 
ment before  the  merits  could  be  adjudged.39  This  rule  is  recog- 
nized as  less  strict  than  the  requirement  of  section  603  of  the  New 
York  Code  of  Civil  Procedure  authorizing  a  temporary  injunction 
to  be  granted  only  when  it  shall  appear  by  the  complaint  that  the 


39.    Flippin   v.   Knaffle,   2    Cooper 
(Tenn.    Ch.),    238,    where    the    chan- 
cellor said:     "  In  Glascott  v.  Lang,  3 
Myl.  &  Cr.  455,  Lord  Cottenham  says : 
'  In    looking    through    the    pleadings 
and  evidence   for  the   purpose  of  an 
injunction,   it  is  not  necessary  that 
the   court  should  find  a  case  which 
would  entitle  the  plaintiff  to  relief  at 
all  courts.    It  is  quite  sufficient  if  the 
court  finds,   upon   the   pleadings   and 
the  evidence,  a  case  which  makes  the 
transaction    a    proper  subject  of  in- 
vestigation, in  a  court  of  equity.'     In 
Great  Western  R.  Co.  v.  Birmingham 
R.  Co.,  2  Ph.  602,  the  same  learned 
judge  says:      'It  is  certain  that,  the 
court    will    in    many    cases    interfere 
and  preserve  property    in    statu    quo 
during    the    pendency    of    a    suit    in 
which  the  rights  to  it  are  to  be  de- 
cided,   and    that    without    expressing 
and   without    having    the    means   of 
forming,    any     opinion     as     to     such 
rights.      ...     It  is  true  that  the 
court  will  not  so  interfere  if  it  thinks 
that  there  is  no  real  question  between 
the  parties;   but  seeing  that  there  is 
a  substantial   question  to  be  decided, 
it    will    preserve    the    property    until 
such   question   can   be    regularly    dis- 
posed of.     In  order  to  support  an  in- 
junction  for   such   purpose   it   is   not 
necessary  for  the  court  to  decide  upon 


the  merits  in  favor  of  the  plaintiffs.' 
In  Shrewsbury  v.  Shrewsbury,  etc., 
R.  Co.,  1  Sim.  N.  S.  410,  426,  reviews 
these  rulings  of  Lord  Cottenham,  and 
in  view  of  some  suggestions  by  Lord 
Eldon  on  the  same  subject  concludes 
that  there  are  two  points  on  which 
the  court  must  satisfy  itself.  First, 
not  that  the  plaintiff  has  cer- 
tainly a  right,  but  that  he  has 
a  fair  question  to  raise  as  to 
the  existence  of  such  right.  The 
other  is  whether  interim  interference 
on  a  balance  of  convenience  or  incon- 
venience to  the  one  party  and  to  the 
other  is  or  is  not  expedient.  And  see 
Tonson  v.  Walkers,  3  Swanst.  679. 
To  the  same  effect  are  the  American 
authorities.  '  It  is  not  usual  nor  or- 
dinarily is  it  proper,  to  enquire  into 
the  right  of  the  court  to  grant  relief 
upon  an  application  for  an  injunc- 
tion, still  less  to  refuse  an  injunction 
when  the  question  of  jurisdiction  is 
doubtful,  and  when  refusing  it  may 
produce  injury  to  the  party  applying.' 
Hartt  v.  Harvey,  32  Barb.  68.  This 
practice  has  been  changed  in  New 
York  by  the  statute  directing  an  in- 
junction to  be  granted  only  when  it 
shall  appear  by  the  complaint  that 
the  party  is  entitled  to  the  relief  de- 
manded. Code  Civ.  Pro.,  sec.  603. 
'  In  order  to  support  a  motion  for  an 


38 


Definition  and  Nattjbe  of  Injunctions.  §  19 

plaintiff  is  entitled  to  the  relief  demanded.40  In  a  later  case  in  Ten- 
nessee, however,  it  is  decided  that  it  is  essential  to  the  granting 
of  an  injunction  to  protect  a  party  in  rightful  possession  that  it 
should  be  a  clear  case  where  an  undoubted  possession  is  being 
disturbed  by  the  proceedings  sought  to  be  enjoined.41  And  again 
in  a  more  recent  case  it  is  decided  that  the  fact  that  a  declaration 
of  policy  may  be  made  the  basis  of  illegal  acts  and  practices  there- 
after is  not  sufficient  ground  for  a  present  injunction  unless  such 
illegal  acts  are  its  direct  and  necessary  effect.42 

§  19.  Same  subject ;  when  plaintiff  not  harmed. — A  temporary 
injunction  is  properly  refused  where  no  harm  can  come  to  plain- 
tiff by  its  refusal,  and  where  the  questions  of  law  have  not  been 
argued  and  the  facts  justly  and  clearly  presented.  Thus  where 
the  grantor  had  reserved  certain  mining  privileges  by  the  deed  of 
conveyance,  but  the  grantee  had  the  right  to  use  the  water  on  the 
land  conveyed  to  him,  the  court  refused  to  enjoin  such  use  in 
limine,  and  directed  the  bill  to  be  held  up  for  a  full  hearing,  so 
that  the  injunction  might  be  intelligently  adjudged  after  a  jury 
trial.43    While  courts  of  equity  have  jurisdiction  to  prevent  public 

injunction  the  bill  should  set  forth  a  junction   in  this  case,   as   there   can 

case  of  probable   right,  and  a  prob-  come  no  harm  to  plaintiff  on  that  ac- 

able  danger    that  the  right  would  be  count,  under  the  facts,  for  whatever 

defeated  without  the  special  interpo-  may  be  the  rights  of  the  grantor  it  is 

sition  of  the  court.'     Johnson,  J.,  in  clear  that  the  grantee  had  the  right 

Georgia  v.    Braislford,   2    Dall.    402.  to  erect  the  mill  and  use  the  water 

Blair,  Jr. .  says  in  the  same  case :    '  It  on  the  land.     We  are  satisfied  that 

is  enough  on  a  motion  of  this  kind  to  this  case  should  go  to  a  trial  before 

show  a  colorable  title.'"  a   jury,  where   all   the   facts   can   be 

40.  Flippin  v.  Knaffle.  2  Cooper  submitted  to  the  court  and  jury,  and 
(Tenn.  Ch.),  238,  243;  Hartt  v.  Har-  for  this  purpose  we  direct  that  the 
vey.  32  Barb.  55,  68.  bill  be  held  up  for  a  full  hearing  so 

41.  Moore  v.  Hollum,  1  Lea  that  the  case  may  be  intelligently  ad- 
(Tenn.),  511,  512.  judicated.    There  are  many  questions 

42.  Post  v.  Southern  R.  Co.,  103  which  may  arise  in  this  case  of  the 
Tenn.  184,  52  S.  W.  301,  55  L.  R.  A.  first  importance  which  are  not 
481.  clearly    stated    in    the    record,    and 

43.  Hamilton  v.  Eden  Gold  Mining  which  have  not  been  argued  before 
Co.,  75  Ga.  447,,  per  Blandon,  J.:  us;  and  upon  a  full  investigation  we 
"  We  are  unanimous  that  the  court  will  be  better  enabled  to  consider  and 
did  right  to  refuse  the  temporary  in-  decide  them." 

39 


20 


Definition  and  Nature  of  Injunctions. 


nuisances  they  will  ordinarily  exercise  it  only  where  the  public 
injury  is  quite  serious  and  where  there  is  no  convenient  remedy 
in  the  tribunals  of  law.44  The  court  will  not  exercise  its  jurisdic- 
tion to  prevent  an  act  by  defendants  which  though  illegal  and 
improper,  is  for  that  reason  futile  and  productive  of  no  injury  to 
plaintiff;  a3  for  example  to  prevent  defendant  from  proceeding 
with  an  arbitration  to  which  plaintiff  is  not  a  party.45 

§  20.  Clear  violation  of  plaintiff's  right;  balancing  equities. — 
When  plaintiff's  moving  allegations  are  denied  under  oath  in  such 
a  manner  as  to  leave  their  truth  in  serious  doubt,  his  application 
for  an  injunction  should  be  denied,  unless  it  clearly  appears  that 
the  injunction  will  do  the  defendants  no  serious  harm  and  that  its 


44.  Thus  in  Raritan  Township  v. 
Port  Reading  R.  Co.,  49  N.  J.  Eq. 
11,  23  Atl.  127,  the  court  refused  to 
interfere  by  preliminary  injunction  to 
restrain  the  defendant  from  erecting 
bridge  abutments  upon  the  sides  of 
an  unfrequented  country  road  for  the 
reason  as  the  court  said  that  "  the 
obstruction  by  the  abutments  will  not 
Beriously  impede  public  travel.  It 
has  been  shown  that  the  travel  over 
the  highway  in  question  is  merely 
nominal;  that  the  roadway  in  use 
consists  of  a  single  wagon  track;  that 
the  highway  on  each  side  of  this 
wagon  track  where  the  abutments  are 
being  erected  is  overgrown  by  under- 
brush and  weeds,  so  that  for  all  prac- 
tical purposes  the  twenty-five  foot 
space  between  the  abutments  will  be 
ample  for  the  public  accommodation 
at  present  and  perhaps  for  years  to 
come."  So  in  Woodbridge  Township 
v.  Inslee,  37  N.  J.  Eq.  397,  a  bill  to 
enjoin  excavations  in  or  near  a  high- 
way was  held  to  be  demurrable  be- 
cause it  did  not  allege  that  defendant 
threatened  to  excavate  so  close  as  to 
endanger    the    road,    and    the    court 


added  "  that  there  does  not  appear  to 
be  any  necessity  for  recourse  to 
equity.  The  excavation  made  by  Ins- 
lee has  existed  since  187G,  five  years 
before  the  bill  was  filed,  and  it  would 
seem  that  the  piles  of  clay  complained 
of  were  placed  in  the  road  some 
months  before  this  suit  was  begun. 
It  is  not  even  averred  that  there  ia 
any  need  of  immediate  relief.  Not- 
withstanding the  excavation  and  ob- 
structions, the  road  has  been  used  by 
tne  public  and  so  far  as  the  bill  shows 
with  safety.  It  follows  from  what  has 
been  said  that  the  demurrer  must  be 
allowed." 

45.  Farrar  v.  Cooper,  L.  R.  44  Ch. 
D.  323.  A  preliminary  injunction 
will  not  be  granted  to  compel  the  les- 
sees of  an  opera  house  to  allow  the 
complainants  to  use  the  house  in  ac- 
cordance with  a  contract  therefor, 
where  such  injunction  would  compel 
the  lessee  to  break  a  similar  contract 
made  by  them  with  an  innocent  third 
party  and  the  complainants  cannot 
use  the  house  with  profit  to  them- 
selves. Foster  v.  Ballenberg  (1890), 
43   Fed.  821. 


40 


Definition  and  Natuke  of  Injunctions. 


§20 


refusal  will  subject  plaintiff  to  peculiar  hardship.46  And  an  in- 
junction will  not  be  granted  when  the  injury  complained  of  is 
slight  compared  to  the  inconvenience  to  the  defendant  and  the 
public  that  would  result  from  granting  the  injunction.47  And 
where  an  injunction  would  seriously  affect  the  interests  of  the 
defendants  and  would  be  of  no  advantage  to  the  plaintiffs,  the 
court,  in  the  exercise  of  the  judicial  discretion  which  it  is  bound 
to  exercise  may  properly  refuse  to  grant  the  injunction.48  An 
injunction  will  not  be  granted  to  a  party  unless  he  has  a  clear  legal 
or  equitable  right  which  is  being  or  about  to  be  disturbed.49    And 


46.  Connolly  Mfg.  Co.  v.  Wattles, 
49  N.  J.  Eq.  92,  23  Atl.  123,  where 
the  court  said :  "  No  consequences  of 
peculiar  hardship  can  flow  to  the 
complainant  from  a  denial  of  its 
present  application.  For  reasons  al- 
ready stated  it  is  extremely  uncer- 
tain whether  he  has  on  the  vital 
point  in  contest  the  least  pretense  of 
right  against  the  defendant.  If  an 
injunction  were  granted  under  such 
circumstances,  the  result  would  be 
that  the  defendant  would  be  deprived 
of  certain  property  belonging  to  him 
by  process  of  law,  which  according  to 
the  evidence  as  it  now  stands,  the 
complainant  has  no  right  to  what- 
ever." See  also  Citizens  Coach  Co. 
v.  Camden,  etc.,  R.  Co.,  29  N.  J.  Eq. 
306;  Noonan  v.  Grace,  49  N.  Y. 
Super.  116;  Electrical  Storage  Co.  v. 
Whiting,  17  N.  Y.  W.  Dig.  263. 

47.  Wood  v.  Bangs,  1  Dak.  179, 
189.  46  N.  W.  586;  Becker  v.  Lebanon 
&  M.  St.  R.  Co.,  188  Pa.  St.  484,  41 
Atl.  612;  Daugherty  Typewriter  Co. 
v.  Kittanning  Iron  &  S.  M.  Co.,  178 
Pa.  St.  215,  35  Atl.  111. 

Where  it  is  reasonably  prob- 
able that  more  injury  will  result 
from  the  granting  of  an  injunction 
than  will  be  prevented  it  should  be 
refused.    Fesler  v.  Brayton,  145  Ind. 


71,  44  N.  E.  37,  32  L.  R.  A.  578. 

48.  Barney  v.  City  of  New  York. 
83  App.  Div.  (N.  Y.)  237,  82  N.  Y. 
Supp.  124. 

49.  Mowday  v.  Moore,  133  Pa.  St. 
598,  19  Atl.  626,  where  plaintiff, 
though  knowing  that  the  soil  was 
spongy  and  that  the  water  from  a 
raceway  on  defendant's  adjoining  lot 
passed  to  his  cellar  while  he  was 
digging  it,  yet  proceeded  without 
using  the  precautions  which  would 
have  afforded  him  protection.  It  was 
held  that  plaintiff  could  not  have  in- 
junction requiring  defendant  so  to 
reconstruct  his  buildings  that  the 
water  would  not  pass  to  plaintiff's 
premises.  See,  also,  Mirkil  v.  Mor- 
gan, 134  Pa.  St.  144,  19  Atl.  628; 
Delaware,  L.  &  W.  R.  Co.  v.  Central 
S.  Y.  Co.,  45  N.  J.  Eq.  50,  17  Atl. 
146;  Newark  Aqueduct  Board  v.  Pas- 
saic, 45  N.  J.  Eq.  393,  18  Atl.  106; 
Harper  v.  McElroy,  42  N.  J.  Eq.  280, 
10  Atl.  879;  Cheshire  Mills  v.  Gow- 
ing,  62  N.  H.  618;  Shivery  v. 
Streeper,  24  Fla.  103,  3  So.  865; 
American  Fire  Hose  Co.  v.  Callahan 
Co.,  41  Fed.  50;  Raymond  v. 
Boston  Hose  Co.,  39  Fed.  365. 
The  failure  of  a  jury  to  agree  in  a 
suit  for  the  same  injury  is  a  good 
reason    for    denying    an    injunction. 


41 


§  20  Definition  and  Nature  of  Injunctions. 

generally  an  injunction  will  never  be  granted  when  it  will  be  pro- 
ductive of  hardship,  oppression  or  injustice,  or  public  or  private 
mischief.50  So  where  the  defendant  disputes  plaintiff's  title  or 
denies  his  violation  of  plaintiff's  rights  the  court  is  reluctant  upon 
an  interlocutory  order  to  grant  plaintiff  an  injunction;  and  plain- 
tiff should  show  that  his  inconvenience  without  it  would  greatly 
exceed  the  defendant's  inconvenience  from  it.51  And  under  the 
operation  of  fresh  inventions  and  of  forces  which  are  not  fully 
understood  it  is  so  difficult  to  balance  and  adjust  the  equities  of 
parties  that  the  courts  are  reluctant  to  interfere  by  injunction,  or 
having  so  interfered,  to  dissolve  the  injunction  until  after  a  trial 
of  the  case  upon  the  merits.52  And  where  street  railroad  com- 
panies had  the  right  to  use  sand  on  their  tracks  when  necessary  to 
provide  footing  for  horses,  during  certain  months  of  the  year,  but 
an  order  was  issued  directing  the  police  to  prevent  the  use  of  sand 
during  other  months,  an  injunction  to  restrain  the  execution  of 
the  order  was  refused,  because  if  granted  it  would  leave  to  the 
discretion  of  the  railroad  officials  the  decision  as  to  when  the 
tracks  did  acquire  to  be  sanded.53  Again  whatever  right  the  owner 
of  property  may  have  to  an  injunction,  a  stranger  having  no 
interest  in  the  property  has  no  such  right.54 

Mowday  v.  Moore,   133  Pa.  St.   598,  to  the  parties.    Dobie  v.  Temporalities 

19  Atl.  626.    Only  in  a  clear  case  will  Fund   (Quebec),  9  Reone  Legale,  574. 

a  perpetual  injunction  issue.    And  the  52.     Hudson     River     Tel.     Co.     v. 

burden    of    showing   such    a    case    by  Watervliet  Turnpike  &  R.  Co.,  121  N. 

facts  and  not  by  mere   presumptions  Y.  397,  405,  24  N.  E.  832. 

is   on    him   seeking    the     injunction.  53.     Dry    Dock,    etc.,    R.    Co.    v. 

Spangler   v.    Cleveland,    43    Ohio    St.  Mayor,    47   Hun,   221. 

526,  3  N.  E.  365;  Burnham  v.  Kemp-  54.    Whether   or   not  Laws  N.    Y. 

ton,  44  N.  H.  92.  1888,   chap.   325,   which   provided   for 

50.  Wood  v.  Bangs,  1  Dak.  179,  the  dredging  and  excavating  of  the 
189,  46  N.  W.  586;  Sheldon  v.  Rock-  old  Bear  race  so  as  to  render  it 
well,  9  Wis.  166  180.  See,  also,  Mott  navigable  for  canal  boats,  is  void  as 
v.  Underwood,  148  N.  Y.  463,  42  N.  virtually  taking  private  property  for 
E.   1048,  32  L.  R.  A.  270.  a  public  use  without  compensation,  is 

51.  White  v.  Whitehead  (Quebec),  a  question  which  can  be  raised  only 
7  Legal  News,  292.  The  judge  to  by  the  owners  of  sucli  race,  and  is  no 
whom  an  application  for  injunction  is  ground  for  enjoining  the  prosecution 
mrulf  should  in  the  exercise  of  his  of  the  work  at  the  instance  of  a  third 
discretion  consider  the  inconveniences  person,  who  has  no  interest  whatever 

42 


Definition  and  Nature  of  Injunctions. 


§21 


§  21.  Where  plaintiff's  rights  are  doubtful. — A  preliminary 
injunction  should  not  be  granted  where  plaintiff's  right  to  it  is 
doubtful.65  The  prerequisites  to  the  allowance  of  a  preliminary 
injunction  are  that  the  complainant  must  generally  present  a  clear 
title,  or  one  free  from  reasonable  doubt,  and  set  forth  acts  done 
or  threatened  by  the  defendant  which  will  seriously  or  irreparably 
injure  his  rights  under  such  title,  unless  restrained.56  Thus  where 
complainant  made  an  arrangement  with  the  representative  of  the 
World's  Columbian  Exposition  Company  which  was  authorized 
only  to  erect  and  equip  the  building,  the  control  of  the  exhibit 
being  vested  in  a  Congressional  Commission,  to  supply  for  the 
exposition  building  certain  boilers,  which  were  also  to  be  used 


in  the  race.  Waterloo  Woolen  Mfg. 
Co.  v.  Shanahan,  128  N.  Y.  345,  28 
N.  E.  358. 

55.  United  States. — Richards  v. 
Meissner,  158  Fed.  109;  Capital  City 
Gaslight  Co.  v.  Des  Moines,  72  Fed. 
829;  Kilburn  v.  Ingersoll,  67  Fed. 
46;  Home  Ins.  Co.  v.  Nobles,  63  Fed. 
642. 

Florida. — Kahn  v.  Kahn,  15  Fla. 
400. 

Georgia. — Davi3  v.  Jones,  97  Ga. 
340,  22  S.  E.  998;  Thrasher  v. 
Holmes,  92  Ga.  571,  17  S.  E.  899; 
White  v.  Williamson,  92  Ga.  443,  17 
S.  E.  604. 

Indiana. — Wallace  v.  McVey,  6 
Ind.  300. 

Massachusetts.  —  Charles  River 
Bridge  Co.  v.  Warren  Bridge,  6  Pick. 
376. 

Mississippi. — Green  v.  Lake,  54 
Miss.  540,  28  Am.  Rep.  378. 

New  Hampshire. — Cheshire  Mills 
v.  Gowing,  62  N.  H.  618. 

New  Jersey. — National  Docks  &  N. 
J.  J.  C.  Ry.  Co.  v.  Pennsylvania  R. 
Co.,  54  N.  J.  Eq.  10,  33  Atl.  219; 
Morris  Canal  &  B.  Co.  v.  Society  for 
Establishing  Useful  Manufactures,  5 
N.  J.  Eq.  203;  Hinchman  v.  Paterson 


Horse  R.  Co.,  17  N.  J.  Eq.  75,  86  Am. 
Dec.  252. 

New  York. — Weiss  v.  Herlihy,  23 
App.  Div.  608,  49  N.  Y.  Supp.  81; 
Warsaw  Waterworks  Co.  v.  Warsaw, 
4  App.  Div.  509,  40  N.  Y.  Supp.  28; 
Howe  v.  Rochester  Iron  Mfg.  Co.,  66 
Barb.  592;  Dubois  v.  Budlong,  23  N. 
Y.  Super.  Ct.  700;  Spring  v.  Strauss, 
16  N.  Y.  Super.  Ct.  607;  Fredericks 
v.  Mayer,  14  N.  Y.  Super.  Ct.  227; 
Hart  v.  City  of  Albany,  3  Paige,  218; 
Keating  v.  Fitch,  14  Misc.  R.  128, 
35  N.  Y.  Supp.  641. 

North  Carolina. — McNair  v.  Bun- 
combe County,  93  N.  C.  370. 

Pennsylvania. — Berkery  v.  Ber- 
wind  White  C.  M.  Co.  (Pa.  1908),  69 
Atl.  329;  Hicks  v.  American  Natural 
Gas  Co.,  207  Pt.  St.  540,  57  Atl.  55; 
Audenried  v.  Philadelphia  &  R.  R. 
Co.,  68  Pa.  St.  370,  8  Am.  Rep.  195; 
Scott  v.  Burton,  2  Ashm.  312;  Raub 
Coal  Co.  v.  Waddell,  7  Kulp.  282; 
Picar  v.  Bovalak,  7  Kulp.  241; 
Scranton  v.  Delaware  &  H.  C.  Co.,  12 
Pa.  Co.  Ct.  R.  241. 

56.  Stevens  v.  Missouri  K.  &  T. 
Ry.  Co.,  106  Fed.  771,  774,  45  C.  C. 
A.  611. 


43 


§  22  Definition  and  Nature  of  Injunctions. 

as  exhibits,  it  was  decided  that  he  was  not  entitled  to  an  injunc- 
tion to  prevent  the  use  of  other  boilers  in  the  building,  because  it 
was  not  clear  that  the  exposition  representative  had  the  power  to 
grant  complainant  such  a  privilege.57  And  an  injunction  will  not 
be  granted  to  stay  waste  where  the  complainant's  right  to  the 
premises  is  doubtful.58  While  a  court,  having  jurisdiction  of 
defendant,  may  no  doubt  enjoin  him  from  wasting  or  interfering 
with  property,  or  asserting  title  thereto,  though  the  property  be 
situated  in  a  foreign  country,  it  will  not  grant  such  injunction, 
asked  for  on  the  sole  ground  that  certain  acts  of  the  officials  of  a 
foreign  government,  creating  defendant's  title  to  the  property,  are 
alleged  to  be  void.59 

§22.  Same  subject;  patent  causes.— Ordinarily  when  an  al- 
leged infringer  of  a  patent  presents  a  bona  fide  issue  in  fact  or  of 
law,  as,  for  instance,  a  prima  facie  right  to  continue  his  manu- 
facture based  on  a  decree  of  the  patent  office,  the  Federal  courts 
will  not  decide  the  merits  of  the  issue  on  affidavits  by  granting  a 
preliminary  injunction  against  the  infringer,  but  will  require  it  to 
go  over  to  the  final  hearing.60     So,  too,  a  preliminary  injunction 

57.  Babcock,  etc.,  Co.  v.  World's  (N.  Y.)  21.  The  court  will  not  issue 
Columbian  Exposition  Co.,  54  Fed.  an  injunction  to  restrain  waste  un- 
214.  Where  an  agreement  to  supply  less  the  complainant's  title  is  clear 
a  manufacturing  company  with  nat-  or  has  been  adjudicated  on.  Preston 
ural  gas  authorizes  the  gas  company  v.  Smith,  26  Fed.  884. 

to  shut  off  the  gas  for  "  want  of  sup-  59.  Marshall  v.  Turnbull,  34  Fed. 

ply,"  and  in  a  suit  to  enjoin  the  com-  827. 

pany  from  shutting  off  the  gaa  the  60.  Ney  Mf'g  Co.  v.  Superior  Drill 
answer  alleges  that  there  is  such  a  Co.,  50  Fed.  152,  per  Sage,  J.:  "The 
shortage  of  gas  as  to  reduce  the  pres-  motion  for  an  injunction  will  be  over- 
sure  from  275  to  130  pounds  to  the  ruled,  upon  the  authority  of  Good- 
inch,  though  four  additional  wells  year  v.  Dunbar,  1  Fish.  Pat.  Cas.  474. 
have  been  connected  with  defendant's  In  that  case  the  defendant  claimed 
line,  plaintiff's  right  to  the  gas  is  so  under  a  patent  subsequent  to  the 
doubtful  as  to  warrant  the  dissolu-  complainant's.  Justice  Grier.  in  pass- 
tion  of  a  preliminary  mandatory  in-  ing  upon  a  motion  for  a  preliminary 
junction.  Black  Lick  Mfg.  Co.  v.  injunction,  said  that  the  defendant, 
Saltsburg  Gas  Co.,  139  Pa.  St.  448,  in  virtue  of  his  patent,  had  a  prima 
21   Atl.  432.  facie   legal    right    to    manufacture   a 

58.  Storm  v.  Mann,  4  Johns.  Ch.  compound   by   his    process,    and  that 

44 


Definition  and  Nature  of  Injunctions. 


§22 


will  not  be  granted  in  an  infringement  suit  where  the  affidavits 
of  experts  disclose  a  conflict  that  cannot  be  decided  in  complain- 
ant's favor  without  danger  of  unjustly  interfering  with  the  busi- 
ness of  defendants,  who  are  merely  users  of  the  device  in  question, 
and  whose  financial  responsibility  is  not  questioned.61 


whether  that  process  was  a  mere 
colorable  change  from  the  older  patent 
(which  is  precisely  the  claim  made 
in  this  case),  or  was  the  same  com- 
bination or  compound  as  that  de- 
scribed in  the  complainant's  patent, 
was  the  great  question  in  dispute  be- 
tween the  parties,  and  that,  so  far  as 
the  judgment  of  the  patent  office  af- 
fected the  case,  it  might  be  considered 
as  having  been  decided  in  favor  of  the 
defendant.  He  declined  to  grant  the 
motion,  and  declared  that  whenever  a 
defendant  presented  a  case  showing 
a  bona  fide  issue  in  fact  or  of  law, 
or,  as  in  that  case,  a  prima  fade 
right  to  continue  his  manufacture, 
founded  on  a  decree  of  the  patent  of- 
fice, and  a  consequent  public  grant, 
he  would  not  grant  a  preliminary  in- 
junction, and  thus  issue  execution  be- 
fore judgment.  He  further  said  that 
he  would  not  decide  the  merits  of  a 
bona  fide  issue  in  fact  on  ex  parte 
affidavits,  nor  anticipate  the  final 
judgment  of  the  court  on  the  legal 
questions,  as  if  they  had  been  brought 
out  on  demurrer,  or,  it  may  be  added. 
upon  the  hearing.  There  are  pre- 
sented to  the  court  upon  this  appli- 
cation affidavits  of  experts  and  ex- 
hibits of  letters  patent,  and  the  court 
is  asked  to  consider  these  ex  parte 
statements,  and  upon  them  announce 
a  conclusion,  at  this  stage  of  the 
case,  whether,  on  the  one  hand,  the 
complainant's  patent  is  valid,  and,  on 
the  other,  the  defendant's  manufac- 
ture an  infringement.  That  question 
will  have  to  go  over  until  the  final 


hearing."  Upon  the  application  to  a 
Federal  court  for  a  preliminary  in- 
junction to  prevent  the  infringement 
of  a  patent  if  there  appears  to  be  a 
reasonable  doubt  as  to  the  plain- 
tiff's right,  or  the  validity  of  his  pat- 
ent, the  court  may  require  him  to  try 
his  title  at  law  and  then  permit  him 
to  return  for  an  account  in  case  the 
trial  should  be  in  his  favor.  Ogle  v. 
Edge,  4  Wash.  C.  C.  584. 

Where  question  of  infringe- 
ment in  donbt  preliminary  injunc- 
tion will  not  be  granted.  Sprague 
Elec.  R.  &  M.  Co.  v.  Nassau  Elec.  R. 
Co.,  95  Fed.  821,  37  C.  C.  A.  286; 
Blakely  v.  National  Mfg.  Co.,  95  Fed. 
136,  37  C.  C.  A.  27;  Smith  v.  Meri- 
den  Britannia  Co..  92  Fed.  1003; 
Richmond  Mica  Co.  v.  De  Clyne,  90 
Fed.  661. 

61.  Williams  v.  McNeely,  56  Fed. 
265,  per  Dallas,  J.:  "An  application 
for  a  preliminary  injunction  is  not 
in  patent  causes  any  more  than  in 
others,  an  available  short  cut  to  an 
adjudication  upon  asserted,  but  dis- 
puted and  doubtful  rights.  Where, 
upon  such  a  motion,  the  defendant 
avers  that  the  subject  matter  of  the 
infringement  alleged  differs  substan- 
tially from  that  of  the  patent,  the 
question  thus  presented  ought  not,  in 
my  judgment,  to  be  decided  upon  the 
ex  parte  affidavits,  but  should  be  left, 
unless  the  defendant's  contention  be 
plainly  frivolous  and  unsupported, 
entirely  open  for  decision  upon  the 
evidence  as  finally  presented." 


45 


§23 


Definition  and  Nature  of  Injunctions. 


§  23.  Same  subject;  unsettled  questions  of  law It  may  be 

stated  generally  that  a  preliminary  injunction  will  not  be  granted 
where  the  right  upon  which  the  complainant  founds  his  claim  is 
dependent  upon  a  disputed  question  of  law.62  But  under  the  pro- 
cedure sanctioned  by  some  decisions  the  plaintiff  may  establish 


62.  United  States. — French  v. 
Brewer,  Fed.  Cas.  No.  5096,  3  Wall. 
Jr.  346. 

Illinois. — Howell  Co.  v.  Pope  Glu- 
cose Co.,  171  111.  350,  49  N.  E.  497. 

New  Jersey. — Stockton  v.  North 
Jersey  St.  Ry.  Co..  54  N.  J.  Eq.  263, 
34  Atl.  688;  Newark  &  H.  R.  Co.  v. 
New  Jersey  Traction  Co.,  33  Atl.  475 ; 
Atlantic  City  Waterworks  Co.  v.  Con- 
sumers' Water  Co.,  44  N.  J.  Eq.  427, 
15  Atl.  581;  Mandeville  v.  Harman,  42 
N.  J.  Eq.  186,  7  Atl.  37;  Roake  v. 
American  Tel.  Co.,  41  N.  J.  Eq.  35,  2 
Atl.  618;  Jersey  City  Gas  Light  Co. 
v.  Consumers  Gas  Co.,  40  N.  J.  Eq. 
427,  2  Atl.  992;  West  Jersey  R.  Co. 
v.  Cape  May,  etc.,  R.  Co.,  34  N.  J. 
Eq.  164;  National  Docks  R.  Co.  v. 
Central  R.  Co.,  32  N.  J.  Eq.  755; 
Stevens  v.  Paterson,  etc.,  R.  Co.,  20 
N.  J.  Eq.   126. 

'New  York. — Noonan  v.  Grace.  49 
N.  Y.  Super.  Ct.  116;  Gardner  v. 
Newburgh  Trustees,  2  Johns.  Ch.  162; 
DeLacy  v.  Adams,  3  Misc.  R.  432, 
23  N.  Y.  Supp.  297.  But  see  Corning 
v.  Troy,  etc..  Factory,  40  N.  Y.  191, 
207. 

North  Carolina. — Western  North 
C.  R.  Co.  v.  Georgia  &  N.  C.  R.  Co., 
88  N.  C.  79. 

Ohio. — Ross  v.  Cincinnati  L.  &  N. 
Ry..  27  Ohio  Civ.  Co.  R.  135. 

Pennsylvania. — Smith  v.  Reading 
City  Pass.  R.  Co.,  156  Pa.  St.  5.  26 
Atl.  779;  Fritz  v.  Erie  City  Pass. 
R.  Co.,  155  Pa.  St.  472,  26  Atl.  653; 


Rhea  v.  Forsyth,  37  Pa.  St  503,  78 
Am.    Dec.   441. 

Vermont. — Prentice  v.  Larnard,  11 
Vt.   135. 

West  Virginia. — Kanawha  G.  J.  & 
E.  R.  Co.  v.  Glen  Jean  L.,  L.  &  D.  W. 
R.  Co.,  45  W.  Va.  119,  30  S.  E.  86. 

In  Delaware,  etc.,  R.  Co.  v.  Central 
Stock  York  Co.,  43  N.  J.  Eq.  71, 
10  Atl.  490,  Van  Fleet,  "V.  C, 
said:  "The  defendants'  business  is 
of  recent  origin.  Their  duties  to 
common  carriers,  if  any  exist,  are 
wholly  undefined  and  consequently 
unknown.  The  power  of  denning 
them  belongs  to  the  common  law 
courts,  and  until  they  have  been  defined 
by  that  tribunal  of  this  State,  which, 
in  respect  to  such  matters,  exercises 
an  exclusive  jurisdiction,  this  court 
cannot  know  that  any  exist,  nor  what 
they  are,  nor  whether  an  invasion  or 
denial  of  them  constitutes  such  an  in- 
jury as  this  court  may,  in  the  right- 
ful exercise  of  its  power,  redress  by 
injunction.  In  the  language  of  Beas- 
ley,  C.  J.,  no  rule  of  equity  is  better 
settled  than  the  doctrine  that  the 
complainant  is  not  in  a  position  to 
ask  for  a  preliminary  injunction 
when  the  right  on  which  he  founds 
his  claim  is.  as  a  matter  of  law,  un- 
settled. Citizens'  Coach  Co.  v.  Cam- 
den, etc.,  R.  Co.,  29  N.  J.  Eq.  299. 
This  rule  is  jurisdictional.  It  stands 
as  a.  limitation  upon  the  power  of 
the  court,  and  is,  therefore,  a  law 
unto  the  court  which  the  court  must 
obey." 


46 


Definition  and  Nature  of  Injunctions. 


24 


hi8  legal  right  and  protect  it  by  injunction  in  the  same  action.63 
And  in  a  case  in  New  York  it  is  said:  "  We  do  not  understand 
that  it  is  indispensably  necessary  under  our  present  blended  system 
of  procedure,  that  in  case  of  a  disputed  title  to  land,  the  title  must 
be  determined  by  a  legal  action  before  the  court  will  interfere  by 
injunction  to  restrain  alleged  trespasses  by  one  of  the  parties.64 
But  plaintiff's  legal  right  will  not  entitle  him  to  an  injunction  if, 
upon  a  consideration  of  the  whole  case,  the  court  ought  not  in 
conscience  to  grant  it.65  And  where  the  issue  appears  to  be  one 
of  law  as  to  the  rights  of  the  parties,  which  is  fully  presented  on 
the  preliminary  application,  and  no  sufficient  reason  appears  for 
delaying  decision  on  the  question  until  final  hearing  a  prelim- 
inary injunction  may  be  granted.66 

§24.  Same     subject;     trifling     grievances. — An     injunction 

pendente  lite  should  not  be  granted  in  doubtful  cases  or  for  trifling 
grievances.  The  injury  whether  it  bs  actual  or  threatened  must 
be  a  substantial  one.67  If  one  who  claims  a  right  will  derive  no 
benefit  from  the  exercise  of  such  right  it  is  decided  that  a  court 


63.  Newark  Aqueduct  Board  v. 
Passaic,  45  N.  J.  Eq.  393,  18  Atl.  106; 
Atlantic  City  Water  Works  v.  Con- 
sumers' Water  Co.,  44  N.  J.  Eq. 
427,  15  Atl.  581;  Delaware  L.  &  W. 
R.  Co.  v.  Central  Stock  Yard  Transit 
Co.,  43  N.  J.  Eq.  71,  10  Atl.  490; 
Hart  v.  Albany,  3  Paige  (N.  Y.)5  213. 

64.  Lacustrine  Fertilizer  Co.  v. 
Lake  Guano  &  F.  Co.,  82  N.  Y.  476, 
4S6.  Per  Andrews,  J.,  citing  Corn- 
ing v.  Troy  Iron  &  W.  Co.,  40  N.  Y. 
191;  West  Point  Iron  Co.  v.  Reymert, 
45  N.  Y.  403;  Broiestedt  v.  South 
Side  R.  R.  Co.,  55  N.  Y.  220.  Com- 
pare Weed  v.  Roberts^  22  Misc.  R. 
46,  49  N.  Y.  Supp.  366. 

65.  Power's  Appeal,  125  Pa.  St. 
175. 

66.  Johnson  v.  Borough  of  Belmar, 
58  N.  J.  Eq.  354,  357,  44  Atl.  166, 
per  Emery,  V.  C. 


67.  United  States.— Taylor  v. 
Charter  Oak  Life  Ins.  Co.,  17  Fed. 
506. 

Calfomia. — Jacob  v.  Day,  111  Cal. 
571,  44  Pac.  243. 

Connecticut. — Huntting  v.  Hart- 
lord  St.  R.  Co.,  73  Conn.  179,  46  Atl. 
824;  Bigelow  v.  Hartford  Bridge  Co., 
14  Conn.  565,  36  Am.  Dec.  502. 

Georgia. — Savannah  &  O.  Canal 
Co.  v.  Suburban  &  W.  E.  Ry.  Co.,  93 
Ga.  240,  18  S.  E.  S24;  Morrison  v. 
Latimer,  51   Ga.  519. 

Illinois. — Cape  v.  District  Fair 
Ass'n,  99  111.  489,  39  Am.  Rep.  30; 
Barn  v.  Bragg,  70  111.  283. 

Indiana. — Whitlock  v.  Consumers 
Gas  Trust  Co.,  127  Ind.  62,  26  N.  E. 
570;  Stanffer  v.  Cincinnati  R.  &  M. 
R.  Co.   (Ind.  App.),  70  N.  E.  543. 

Kentucky. — Barker  v.  Warren,  6 
Ky.  Law  Rep.  86. 


d-7 


§24 


Definition  and  Nature  of  Injunctions. 


of  equity  will  not  interfere  to  aid  him  in  the  assertion  of  it.88 
Where  the  right  is  not  clear  or  the  danger  great  an  injunction 
should  not  be  granted  till  the  rights  of  the  parties  are  determined 
on  final  hearing.69  And  a  court  of  equity  is  not  bound  to  issue  an 
injunction  when  it  will  produce  great  public  or  private  mischief 
merely  for  the  purpose  of  protecting  a  technical  or  unsubstantial 
right.70  "  Before  an  injunction  will  be  awarded  the  party  apply- 
ing therefor  must  clearly  show  that  he  is  possessed  of  a  substantial 
right  from  which  injury  will  flow,  unless  the  acts  of  which  com- 
plaint is  made  are  restrained."  n  Thus,  whatever  may  have  been 
the  agreement  between  school  and  church  trustees  the  court  re- 


M'chigan. — Hall  v.  Rood,  40  Mich. 
46,  29  Am.  Rep.  528. 

Nevada. — Thorne  v.  Sweeney,  13 
Nev.  415. 

New  Hampshire. —  Fisher  v.  Car- 
penter, 67  N.  H.  569,  39  Atl.  1018; 
Bassett  v.  Salisbury  Mfg.  Co.,  47  N. 
H.   426. 

New  Jersey. — Wakeman  v.  New 
York,  L.  E.  &  W.  R.  Co.,  35  N.  J.  Eq. 
496;  United  N.  J.  R.  &  C.  Co.  v. 
Standard  Oil  Co.,  33  N.  J.  Eq.  123. 

New  York. — Pratt  v.  New  York 
Central  &  H.  R.  R.  Co.,  90  Hun,  83, 
N.  Y.  Supp.  — ;  Phelps  v.  Water- 
town,  61  Barb.  121;  Greanelle  v. 
Mercantile  Ben.  Assn,  35  N.  Y.  Supp. 
796;  Neiman  v.  Butler,  19  N.  Y. 
Supp.  403;  Purdy  v.  Manhattan  El. 
R.  Co.,  13  N.  Y.  Supp.  295;  New  York 
Printing  and  Dyeing  Establishment 
v.  Fitch,   1   Paige,  97. 

Pennsylvania. —  Blanchard  v.  Rey- 
burn,  1  Wkly.  Notes  Cas.  529. 

Rhode  Island. — McMaugh  v.  Burke, 
12  R.  I.  499. 

South  Dakota. — State  v.  Thorson, 
9  S.  D.  149,  68  N.  VV.  202,  33  L.  R. 
A.   182. 

Texas. — Watrous  v.  Rogers,  16  Tex. 
410. 


Utah. — Tarmer  v.  Nelson,  25  Utah, 
226,  70  Pac.  984;  Crescent  Min.  Co. 
v.  Silver  King  Min.  Co.,  17  Utah,  444, 
54  Pac.  244. 

Wisconsin. — Ebert  v.  Langlade 
County,  107  Wis.  569,  83  N.  W.  942; 
Head  v.   James,    16   Wis.   641. 

68.  Owen  v.  Field,  12  Allen 
(Mass.)    457. 

69.  Hall  v.  Rood,  40  Mich.  46; 
McLaughlin  v.  Sandusky,  17  Neb. 
110;  Redfield  v.  Middleton,  7  Bosw. 
(N.  Y.)  649;  Manhattan  Gas  Light 
Co.  v.  Barker,  36  How.  Pr.  (N.  Y.) 
233 ;  Dunn  v.  Bryan,  7  Ir.  R.  Eq.  143. 

A  citizen  and  taxpayer  has  no 
such  interest  in  the  subject  matter  as 
to  entitle  him  to  maintain  a  private 
action  to  restrain  the  organization  of 
a  county.  Hughes  v.  Dobb9,  84  Tex. 
Sup.  502,  19  S.  W.  684. 

70.  Knoth  v.  Manhattan  Ry.  Co., 
187  N.  Y.  243,  252,  79  N.  E.  1015, 
aff'g  109  App.  Div.  802,  and  citing 
Gray  v.  Manhattan  Ry.  Co.,  128  N. 
Y.  499,  28  N.  E.  498.  See  Duncan  v. 
Hey  ward   (S.  C.  1906),  54  S.  E.  760. 

71.  Johnstown  Min.  Co.  v.  Butte 
&  Boston  Consol.  Min.  Co.,  60  App. 
Div.  (N.  Y.)  344,  70  N.  Y.  Supp. 
257,  per  Hatch,  J. 


4S 


Definition  and  Nature  of  Injunctions.  §  24 

fused  to  enjoin  the  church  from  holding  services  in  the  church 
room  above  the  school  during  school  hours,  because  the  evidence 
did  not  show  that  a  little  preaching  upstairs  disturbed  or  injured 
the  school.72  So  it  has  been  decided  in  New  York  that  an  injunc- 
tion against  the  operation  of  an  elevated  railroad,  constructed  in 
a  public  street  in  the  city  of  New  York  by  authority  of  law,  should 
not  be  granted  at  the  suit  of  an  abutting  owner  on  proof  of  the 
wrongful  appropriation  of  the  appurtenant  easements  of  light,  air, 
and  access  when  the  plaintiff  fails  to  show  any  substantial  mone- 
tary damage  to  his  property,  or  loss  suffered  by  reason  of  defend- 
ant's acts.73  And  where  a  telephone  company  has  been  authorized 
by  the  city  to  place  its  overhead  wires  in  underground  conduits, 
an  act  in  the  interest  of  the  public  safety,  a  mere  abutting  owner 
cannot  enjoin  the  company  from  constructing  such  a  conduit  in 
the  street  in  front  of  his  property,  where,  although  he  alleges  that 
the  conduit  will  constitute  a  continuing  trespass,  he  does  not  allege 
that  any  substantial  pecuniary  damage  will  result  therefrom  to 
his  easements  or  to  his  property.74  And  a  preliminary  injunction 
will  not  be  granted  where  the  complainant's  rights  rest  on  doubtful 
points  of  constitutional  law  or  the  questionable  construction  of  a 
statute.73  And  a  court  of  equity  will  not  grant  an  injunction  nor 
compel  the  performance  of  a  covenant  where  there  is  no  substantial 
wrong  to  be  righted,76  and  will  not  compel  the  performance  of  a 

72.  Miller  v.  Nelson,  14  Ky.  Law.  Connecticut. — Quinn  v.  Roath.  37 
829,  21  S.  W.  875.  Conn.    16. 

73.  O'Reilly  v.  New  York  Elev.  R.  Illinois.— Iglehart  v.  Vail,  73  I1L 
R.  Co.,  148  N.  Y.  347,  42  N.  E.  1063.  63;  Fish  v.  Leser,  69  111.  394. 

74.  Castle  v.  Bell  Telephone  Co.,  Iowa. — Thurston  v.  Arnold,  43 
30  Misc.  R.  (N.  Y.)  38,  61  N.  Y.  Iowa,  43;  Sweeney  v.  O'Hora,  43 
Supp.  743.  Iowa,   34. 

75.  Paterson  R.  Co.  v.  Grundy,  51  New  Jersey. — Plummer  v.  Kepler, 
N.  J.  Eq.  213.  26  Atl.  788.     See,  also,  26  N.  J.  Eq.  481. 

Ryan    v.    Williams,     100    Fed.     177.  New    York. — Peters    v.    Delaphine, 

Compare  Fairfield  Floral  Co.  v.  Brad-  49  N.  Y.  367,  373;  Neiman  v.  Butler, 

bury,  87   Fed.  415.  46  N.  Y.  St.  928,  932;  Purdy  v.  Man- 

76.  United  States.— Taylor  v.  Long-  hattan  R.  Co.,  36  N.  Y.  St.  43 ;  Brush 
wortli,  14  Pet.  172,  10  L.  Ed.  405;  v.  Metropolitan  R.  Co.,  44  N.  Y.  St 
King  v.  Hamilton,  4  Pet.   311,  7  L.  111. 

Ed.    869;    Mechanics   Bank  v.   Lynn,  Virginia. — McComas  v.    Easley,  21 

1  Pet.  376,  7  L.  Ed.  185.  Gratt.  23. 

49 


§  25  Definition  and  Nature  of  Injunctions. 

statutory  provision  unless  first  satisfied  that  the  thing  asked  for 
will  be  useful  to  plaintiff.77  The  plaintiff  will  be  required  to 
make  out  a  case  free  from  reasonable  doubt,  where  he  offers  no 
security  for  defendant's  damages  and  the  injunction  would  stop 
defendant's  entire  business.78  But  where  defendant  under  a  doubt- 
ful claim  is  about  to  do  permanent  injury  to  real  property,  and  the 
injunction  will  do  but  trifling  injury  to  him  easily  compensated  in 
damages,  it  should  be  granted.79 

§  25.  Balance  of  convenience  in  doubtful  cases. — Where  the 

rights  of  the  parties  are  at  all  doubtful  the  court  applied  to  for 
an  injunction  should  look  at  the  balance  of  convenience,  and  act 
upon  the  consideration  of  the  comparative  inconvenience  which 
may  arise  from  granting  or  withholding  the  injunction.80  In  this 
connection  it  is  said  in  a  recent  case:  "  In  a  doubtful  case,  where 
the  granting  of  the  injunction  would,  on  the  assumption  that  the 
defendant  ultimately  will  prevail,  cause  greater  detriment  to  him 
than  would,  on  the  contrary  assumption,  be  suffered  by  the  com- 
plainant, through  its  refusal,  the  injunction  usually  should  be 
denied.  But  where,  in  a  doubtful  case,  the  denial  of  the  injunc- 
tion would,  on  the  assumption  that  the  complainant  ultimately 
will  prevail,  result  in  greater  detriment  to  him  than  would,  on  the 

77.  Clarke  v.  Rochester  R.  Co.,  18  tile  Ben.  Ass'n,  35  N.  Y.  Supp.  796. 
Barb.  (N.  Y.)  350.  An  injunction  See  Mount  Morris  Bank  v.  New  York 
will  not  be  granted,  as  a  general  rule,  &  H.  R.  R.  Co.,  50  Misc.  R.  417,  100 
where   the   benefit  of   it  to   the   com-  N.  Y.  Supp.  544. 

plainant  is  slight,   and  the  mischief  Oregon. — Mann    v.    Parker     (Oreg. 

and  embarrassment  to  the  defendant  1906  )t  86  Pac.  598. 

considerable.     Jones  v.   City  of  New-  Pennsylvania. — Berkey   v.    Berwind 

ark,  11  N.  J.  Eq.  452.  White  C.  M.  Co.    (Pa.  1908),  69  Atl. 

78.  Dubois  v.  Budlong,  15  Abb.  Pr.  329. 

(N.  Y.)    445.  Texas.— Elliott   v.    Ferguson    (Tex. 

79.  Church   of   Holy    Innocents    v.  Civ.  App.  1907),  103  S.  W.  453. 
Keech    5  Bosw.    (N.  Y.)    G91.  England. — Attorney       General       v. 

80.  Illinois.— Cleveland  v.  Martin,  Dorking,  L.  R.  20  Ch.  D.  595;  Gar- 
218  111.  73,  75  N.  E.  772;  Lloyd  v.  rett  v.  Banstead,  etc.,  R.  Co.,  13  W. 
Catlin  Coal  Co.,  210  111.  460,  71  N.  Rep.  878;  Clowes  v.  Beck,  20  L.  J.  N. 
E.  335.  S.  Ch.  505. 

Hew    York. — Greavelle    v.    Mercan- 

50 


Definition  and  Nature  of  Injunctions.  §  25 

contrary  assumption,  be  sustained  by  the  defendant  through  its 
allowance,  the  iujuuction  usually  should  be  granted.     The  balance 
of  convenience  or  hardship  ordinarily  is  a  factor  of  controlling 
importance  in  cases  of  substantial  doubt  existing  at  the  time  of 
granting  or  refusing  the  preliminary  injunction.     Such  a  doubt 
may  relate  either  to  the  facts  or  to  the  law  of  the  case  or  to  both."  81 
Thus  an  injunction  to  restrain  a  defendant  railroad  company  from 
entering  into  an  agreement  with  another  company  which  would  be 
inconsistent  with  a  subsisting  agreement  between  defendant  and 
the  plaintiff  will  be  refused  if  the  inconvenience  to  arise  to  defend- 
ant from  granting  it  will  be  greater  than  the  inconvenience  to  arise 
to  plaintiff  from  refusing  it.82     So,  where  a  plaintiff  sues  for 
specific  performance  of  a  contract  for  the  sale  of  land,  and  there 
is  a  question  whether  any  contract  exists,  the  court  will  not  restrain 
the  owner  from  dealing  with  it  until  a  suit  for  specific  perform- 
ance has  been  disposed  of.S3    And  where  the  court  could  not  impute 
to  the  parties  to  a  lease  an  intention  that  the  demised  building 
should  be  used  for  wool-broking  purposes  or  other  purposes  requir- 
ing an  extra  amount  of  light,  but  that  all  that  could  be  reasonably 
deemed  to  have  been   in  their  contemplation   was  the  grant  of 
sufficient   light   for   ordinary   business    purposes    in    the    city   of 
London,   an   injunction  was   refused   to   protect  plaintiff   in   the 
enjoyment  of  such  extra  amount  of  light.S4     If  on  the  one  hand 
irreparable  injury  may  be  caused  by  withholding  the  injunction, 
while  on  the  other  hand  any  injury  caused  by  the  injunction  can 
be  compensated  by  damages  the  court  will  grant  it  upon  the  plain- 
tiff's giving  a  bond  to  abide  any  order  as  to  damages  that  may 
afterwards  be  made  in  the  suit.85    And  in  granting  an  injunction 
the  court  should  also  consider  the  amount  of  injury  which  may  be 
thereby  inflicted  on  third  parties  and  strangers  to  the  suit.85 

81.  Harriman  v.  Northern   Securi-  83.  Hadley  v.  London  Bank,  13  W. 
ties  Co.,  132  Fed.  464,  475,  per  Brad-      Rep.  978. 

ford,  J.  84.  Corbett  v.  Jonas   (1892),  67  L. 

82.  Shrewsbury      v.      Shrewsbury,       T.   191. 

etc.,  Rep.  Co.,  1  Sim.  N.  S.  410;    15  85.  Cork  v.  Rooney,  L.  R.  7  Ir.  191. 

Jur.  548.  86.  Maythorn    v.    Palmer,    13    W. 


Rep.  37;  11  Jur.  N.  S.  230. 


51 


§26 


Definition  and  Nature  of  Injunctions. 


§  26.  Adequacy  of  legal  remedy ;  general  rule. — It  is  a  general 
rule,  not  always  easy  of  application,  that  an  injunction  should  not 
be  granted  to  a  party  who  has  an  adequate  remedy  at  law.87    The 


87.  United  States. — Scottish  Union 
t  N.  I  Co.  v.  Bowland,  196  U.  S.  611, 
25  S.  Ct.  345,  49  L.  Ed.  619;  Kirwan 
v.  Murphy,  189  U.  S.  35,  54,  23  Sup. 
Ct.  599,  47  L.  Ed.  698;  Parker  v. 
Winnipisiogee  Lake  C.  &  W.  Co.,  67 
U.  S.  545,  17  L.  Ed.  333;  Montgom- 
ery Traction  Co.  v.  Montgomery 
Amusement  Co.,  140  Fed.  988,  72  C. 
C.  A.  682;  Protector  &  C.  Co.  v. 
Mahin,  93  Fed.  875;  Counterbalance 
Elev.  Co.  v.  Cahill  &  H.  Elev.  Co.,  86 
Fed.  338;  Spring  v.  Domestic  Sew. 
Mach.  Co.,  13  Fed.  446. 

Alabama. — Norwood  v.  Tyson,  138 
Ala.  269,  36  So.  370;  Brown  v. 
Brown,  68  Ala.  114. 

Alaska. — See  Lindeberg  v.  Dove- 
spike,  2  Alaska,   177. 

Arkansas. — Cooper  v.  DeVall  (Ark. 
1906),  98  S.  W.  976;  Wingfield  v. 
McLure,  48  Ark.  510,  3  S.  W.  439; 
Stillwell  v.  Oliver,  35  Ark.  184;  King 
v.  Clay,  34  Ark.  291. 

California. — Richards  v.  Kirk- 
patrick,  53  Cal.  433;  Logan  v.  Hille- 
gass,  16  Cal.  200;  Middleton  v. 
Franklin,  3  Cal.   238. 

Colorado. — Woodward  v.  Ellsworth, 
4  Colo.  580. 

Connecticut. — Whittlesey  v.  Hart- 
ford P.  &  F.  R.  Co.,  23  Conn.  421. 

District  of  Columbia. — Bohrer  v. 
Fay,  3  MacA.   145. 

Georgia. —  Carstarphen  Warehouse 
Co.  v.  Fried,  124  Ga.  544,  52  S.  E. 
598;  Burke  v.  Beall,  77  Ga.  271;  3 
S.  E.  155;  Nicholson  v.  Cook,  76  Ga. 
24;    Norwood  v.   Dickey,   18  Ga.   528. 

Illinois. — Palmer  v.  Gardiner,  77 
111.  143;  Booth  v.  Koehler,  51  111. 
App.  370. 


Indiana. — Ricketts  v.  Spraker,  77 
Ind.  371;  Brown  v.  Herron,  59  Ind. 
61. 

Iowa. — Ewing  v.  Webster  City,  103 
Iowa  226,  72  N.  W.  511. 

Kentucky. — Hahn  v.  Hart,  12  B. 
Mon.  426;  Jones  v.  Chiles,  3  T.  B. 
Mon.  340;  Hill  v.  Anderson,  28  Ky. 
Law  Rep.  1032,  90  S.  W.  1071. 

Louisiana. — Gusman  v.  DePoret,  33 
La.  Ann.  333. 

Maryland. — Chappell  v.  Stewart,  82 
Md.  323,  33  Atl.  542,  37  L.  R.  A.  873; 
Webbe  v.  Scotten,  59  Md.  72 ;  Bank  v. 
Busey,  34  Md.  437;  Lewis  Levy,  16 
Md.  85. 

Massachusetts. — Brewer  v.  Spring- 
field, 97  Mass.  152. 

Minnesota. — Goodrich  v.  Moore,  2 
Minn.  61,  72  Am.  Rep.  74. 

Mississippi. — Sturges  v.  Jackson 
(Miss.  1906),  40  So.  547;  Poindexter 
v.  Henderson,  1  Walk.  176,  12  Am. 
Dec.  550. 

Missouri. — Planet  P.  &  F.  Co.  v. 
St.  Louis  O.  H.  &  C.  Ry.  Co.,  115  Mo. 
613,  22  S.  W.  616;  McPike  v.  Pew, 
48  Mo.  525;  Steines  v.  Franklin 
County,  48  Mo.  167,  8  Am.  Rep.  87. 

Montana. — Beck  v.  Fransham,  21 
Mont.   117u  53  Pac.  96. 

Nebraska.— Mohatt  v.  Hut  (1906), 
106  N.  W.  659;  Wehmer  v.  Fokenga, 
57  Neb.  510,  78  N.  W.  28;  Warlier  v. 
Williams,  53  Neb.  143,  73  N.  W.  539; 
Normand  v.  Otoe  Co.,  8  Neb.  18. 

Nevada. — Wells  Fargo  &  Co.  v. 
Dayton,  11  Nev.  161;  Sherman  v. 
Clark,  4  Nev.  138,  97  Am.  Dec.  516. 

New  Hampshire. — Fisher  v.  Car- 
penter, 67  N.  H.  569,  39  Atl.  1018; 
Brown  v.  Concord,  56  N.  H.  375. 


52 


Definition  and  Nature  of  Injunctions. 


§26 


jurisdiction  of  a  court  of  equity  to  grant  an  injunction  will  not 
be  exercised  where  its  object  can  be  as  well  attained  in  the  ordi- 


New  Jersey. — Sperry  &  Hutchinson 
Co.  v.  Vine,  66  N.  J.  Eq.  339,  57  Atl. 
1036;  New  Jersey  Junction  R.  R.  Co. 
T.  Woodward,  61  N.  J.  Eq.  1,  47  Atl. 
273;  Dusenbury  v.  City  of  New- 
ark, 25  N.  J.  Eq.  295;  Hoagland  v. 
Inhabitants  of  Delaware  Twp.  17  N. 
J.  Eq.  106;  Kerlin  v.  West,  4  N.  J. 
Eq.  449. 

New  York. — Fox  v.  Fitzpatrick,  190 
N.  Y.  259,  82  N.  E.  1103;  Delaney  v. 
Flood,  183  N.  Y.  323,  76  N.  E.  209; 
Thomas  v.  Musical  Mut.  P.  U.,  121 
N.  Y.  45,  24  N.  E.  24,  8  L.  R.  A.  175; 
Floyd-Jones  v.  United  Elec.  L.  Co., 
55  Misc.  R.  529;  Ehrich  v.  Grant,  111 
App.  Div.  196,  97  N.  Y.  Supp.  600; 
Babcock  v.  Leonard,  111  App.  Div. 
294,  97  N.  Y.  Supp.  861;  Fullan  v. 
Hooper,  66  How.  Pac.  75;  People  v. 
Coffin,  7  Hun,  608;  Interborough 
Rapid  T.  R.  Co.  v.  Gallagher,  44  Misc. 
R.  536,  90  N.  Y.  Supp.  104;  Bedell  v. 
McCellan,  11  How.  Prac.  172;  Gra- 
ham v.  Stagg,  2  Paige,  321;  Mallett 
v.  Weybosset  Bank,  1  Barb.  217. 

North  Carolina. — Kistler  v.  Weaver, 
135  N.  C.  388,  47  S.  E.  478;  Grant  v. 
Moore,  88  N.  C.  77;  Parker  v.  Jones, 
68  N.  C.  276,  75  Am.  Dec.  441;  Long 
v.  Merrill,  4  N.  C.  549,  7  Am.  Dec. 
700. 

North  Dakota. — Continental  Hose 
Co.  v.  Mitchell  (1906),  105  N.  W. 
1108. 

Ohio. — Sample  v.  Ross,  16  Ohio, 
419. 

Oklahoma. — Thompson  v.  Tucker, 
15  Okl.  486,  83  Pac.  413;  Winans  v. 
Beidler,  6  Okla.  603,  52  Pac.  405. 

Oregon. — Jackson  v.  Stearns  (Oreg. 
1906),  84  Pac.  798;  Wells,  Fargo  & 
Co.  v.  Wall,  1  Oreg.  295. 

Pennsylvania. — Mercantile    Library 


Co.  v.  University  of  Pennsylvania,  220 
Pa.  St.  328,  69  Atl.  861;  Wallace  v. 
Baltimore  &  O.  R.  Co.,  216  Pa.  St. 
311,  65  Atl.  665,  Burke  v.  Gibson,  6 
Kulp.  310;  Seal  v.  Northern  Cent.  R. 
Cov  1  Pears.  547. 

South  Carolina. — Miller  v.  Furse, 
1  Bailey  Eq.  187. 

Tennessee. — Williams  v.  Wright  9 
Humph.  493. 

Vermont. — White  v.  Booth,  7  Vt. 
131. 

Virginia. — Buffalo  v.  Town  of  Poco- 
hontas,  85  Va.  222,  7  S.  E.  238. 

Washington. — Wilkes  v.  Hunt,  4 
Wash.  100,  29  Pac.  830. 

West  Virginia. — Lance  v.  McCoy, 
34  W.  Va.  416,  12  S.  E.  728. 

Wisconsin. — Chicago  &  N.  W.  Ry. 
Co.  v.  McKeigue,  126  Wis.  574,  105 
N.  W.  1030;  Crandall  v.  Bacon,  20 
Wis.  639,  91  Am.  Dec.  451. 

Wyoming. —  Anthony  Wilkinson 
Livestock  Co.  v.  Mcllquam,  14  Wyo. 
209,  83  Pac.  364. 

Equity  is  chary  of  its  powers: 
it  employs  them  only  when  the  im- 
potent or  tardy  process  of  the  law 
does  not  afford  that  complete  and 
perfect  remedy  or  protection  which 
the  individual  may  be  justly  entitled 
to.  When  therefore  it  is  shown  that 
there  is  a  complete  and  adequate 
remedy  at  law  equity  will  afford  no 
assistance.  Sherman  v.  Clark,  4  Nev. 
138,  141,  97  Am.  Dec.  576,  per  Lewis, 
J. 

It  is  elementary  that  an  injunc- 
tion will  not  lie  to  restrain  the  doing 
of  an  act  where  there  is  a  speedy  and 
adequate  remedy  at  law.  Vander- 
burgh v.  City  of  Minneapolis.  93 
Minn.  81,  100  N.  W.  668,  per  Brown, 
J. 


§  26a 


Definition  and  Nature  of  Injunctions. 


nary  tribunals,  or  by  other  means  specially  provided  by  law  for 
that  purpose.88 


§  26a.  Adequacy   of   legal    remedy;    what    essential    to — A 

remedy  at  law  is  not  to  be  regarded  as  adequate,  so  as  to  exclude 
the  right  to  an  injunction,  unless  it  is  reasonably  practical  and 
direct  in  affording  relief.89  It  is  not  enough  that  there  is  such  a 
remedy  but  it  must  be  plain  and  adequate,  or  in  other  words,  as 
practical  and  efficient  to  the  ends  of  justice  and  its  prompt  admin- 
istration as  the  remedy  in  equity.90  And  where  in  order  to  avail 
himself  of  the  legal  remedy  a  party  must  go  into  a  foreign  juris- 
diction, it  cannot  be  regarded  as  an  adequate  legal  remedy  within 
the  application  of  this  rule  of  law.91  For  the  purpose  of  deteir- 
mining  whether  the  remedy  at  law  will  afford  complete  justice  the 


This  rule  and  its  reason  are 
well  expressed  in  Thomas  v.  Musi- 
cal Mut.  Protective  Union,  121  N.  Y. 
45,  24  N.  E.  24.  "The  creation  of 
equity  jurisdiction  arose  out  of  the 
inability  of  courts  of  law, through  the 
inflexibility  of  their  rules,  and  want 
of  power,  to  adapt  judgments  to  the 
special  circumstances  of  cases,  to 
reach  and  do  complete  justice  in  all 
cases.  It  is  therefore  a  cardinal  rule 
of  equity  that  it  will  not  entertain 
jurisdiction  of  cases  where  there  is 
an  adequate  remedy  at  law,  or  grant 
relief  unless  for  the  purpose  of  pre- 
venting serious  and  irreparable  in- 
jury " — citing  McHenry  v.  Jewett,  90 
N.  Y.  58;  People  v.  Canal  Board,  55 
N.  Y.  394.  Rev.  St.  Mo.  §  2722, 
which  declares  that  the  remedy  by 
injunction  shall  exist  in  all  cases  to 
prevent  a  legal  wrong,  when  an  ade- 
quate remedy  at  law  cannot  be  af- 
forded by  an  action  for  damages,  does 
not  enlarge  the  equity  jurisdiction. 
Neiser  v.  Thomas  12  S.  W.  725,  99 
Md.  224. 


88.  People  v.  Horton,  5  Hun  (N. 
Y),  516. 

89.  Irwin  v.  Lewis,  50  Miss.  363; 
Watson  v.  Sutherland,  5  Wall.  (U. 
S.)   74,  18  L.  Ed.  580. 

90.  United  States. — Boyce's  Execu- 
tors v.  Grundy,  28  U.  S.  (3  Pet.)  210, 
7  L.  Ed.  655;  Williams  v.  Neely,  134 
Fed.   1. 

Indiana. — Meyer  v.  Town  of  Boon- 
ville,  162  Ind.  165,  70  N.  E.  146. 

Kansas. — Mendenhall  v.  School  Dis- 
trict (Kan.  1907),  90  Pac.  773. 

Mississippi. — Irwin  v.  Lewis,  50 
Miss.  363. 

Nebraska. — Richardson  Drug  Co.  v. 
Meyer,  54  Neb.  319,  74  N.  W.  575. 
See,  also,  Niniger  v.  Norwood,  72  Ala. 
277,  47  Am.  Rep.  412;  Sherman  v. 
Clark,  4  Nev.   138,  97  Am.  Dec.  516. 

91.  Stanton  v.  Dewey,  46  Conn. 
595,  wherein  Judge  Pardee  said: 
''  No  legal  remedy  can  be  considered 
as  adequate  which  a  party  is  com- 
pelled to  go  into  a  foreign  jurisdic- 
tion to  avail  himself  of.  It  must  be 
a  remedy  which  our  own  court  can 
apply." 


54 


Definition  and  Natube  of  Injunctions. 


§26b 


court  will  take  into  consideration  all  the  circumstances  of  the  case 
and  the  conduct  of  the  parties.92 

§  26b.  Adequacy  of  legal  remedy;  application  of  rule. — In 

the  application  of  the  general  rule93  it  has  been  generally  decided 
that  an  injunction  will  not  be:  granted  to  a  complainant  who  has 
an  adequate  remedy  at  law  in  an  action  for  damages.94  So  a  party 
to  a  contract  is  not  entitled  to  an  injunction  to  prevent  a  breach 
by  the  other  party  where  it  appears  that  damages  will  be  an 


92.  Drew  v.  Geneva,  150  Ind.  662, 
50  N.  E.  871,  42  L.  R.  A.  814. 

93.  See  §  26  herein. 

94.  United  State. — Maningault  v. 
Springs,  199  U.  S.  473,  26  S.  Ct.  127, 
50  L.  Ed.  274,  affg  123  Fed.  707; 
McCarthy  v.  Bunker  Hill  &  S.  M.  & 
C.  Co.,  147  Fed.  981 ;  General  Electric 
Co.  v.  Westinghouse  Elec.  &  M.  Co., 
144  Fed.  458;  Counterbalance  Elev. 
Co.  v.  Cahill  &  H.  Elev.  Co.,  86  Fed. 
338;  Spooner  v.  McConnell,  1  McLean 
337,  Fed  Case  No.  13245. 

California. — Middleton  v.  Franklin, 
3  Cal.  238. 

Florida. — Cowan  v.  Skinner  (Fla. 
1907),  42  So.  730. 

Georgia. — Detwiler  v.  Bainbridge 
Grocery  Co.,  119  Ga.  981,  47  S.  C. 
553;  Morrison  v.  Latimer,  51  Ga.  519. 

Illinois. — Lloyd  v.  Catlin  Coal  Co., 
109  111.  App.  37,  aff'd  210  111.  460,  71 
N.  E.  335;  Goodell  v.  Lassen,  69  111. 
145. 

Indiana. — Christman  v.  Howe,  163 
Ind.  330,  70  N.  E.  809. 

Ioica. — Dinwiddie  v.  Roberts,  1  G. 
Greene,   363. 

Maine. — Haskell  v.  Thurston,  80 
Me.    129,    13   Atl.   273. 

Maryland. — Hardesty  v.  Taft,  23 
Md.  512,  87  Am.  Dec.  584. 

Mich  gan. —  Howard  v.  Bellows 
(Mich.  1907)   111  N.  W.  1047. 


Mississippi. — Whitfield  v.  Rogers, 
26  Miss.  84,  59  Am.  Dec.  244. 

Missouri. —  Victor  Min.  Co.  v. 
Morningstar  Min.  Co.,  50  Mo.  App. 
525. 

Montana. — Atchison  v.  Peterson,  1 
Mont.  561. 

New  Jersey. — Jacquelin  v.  Erie  R. 
Co.  (N.  J.  Ch.  1905),  61  Atl.  18; 
Morris  Canal  &  B.  Co.  v.  Central  R. 
Co.,  16  N.  J.  Eq.  419;  Warne  v. 
Morris  Canal  &  B.  Co.,  5  N.  J.  Eq. 
410. 

New  York. — Delaney  v.  Flood,  183 
N.  Y.  323,  76  N.  E.  209;  Ehrich  v. 
Grant,  111  App.  Div.  196,  97  N.  Y. 
Supp.  600;  Swett  v.  Troy,  62  Barb. 
630,  12  Abb.  Pr.  (N.  S.)  100;  Water- 
bury  v.  Dry  Dock,  E.  B.  &  B.  R.  Co., 
54  Barb.  388;  Drake  v.  Hudson  R.  R. 
Co.,  7  Barb.  508. 

North  Carolina. — Jordan  v.  Lanier, 
73  N.  C.  90. 

Ohio. — Commercial  Bank  v.  Bow- 
man, 1  Handy,  246;  New  York  &  B. 
Co.  v.  Herrmann,  27  Ohio  Cir.  C.  Ct. 
R.  694. 

Oregon. — Mann  v.  Parker  (1906), 
86  Pac.  598. 

Pennsylvania. — Shaw  v.  National 
Transit  Co.,  4  Pa.  Co.  Ct.  R.  363. 

Virginia. — James  River  &,  Kanawha 
Co.  v.  Anderson,  12  Leigh.  278. 

Wisconsin. — Stroebe  v.  Fehl,  22 
Wis.  337. 


55 


§  26b         Definition  and  Natuee  of  Injunctions. 

adequate  remedy.95  And  the  operation  of  an  electric  light  plant 
will  not  be  enjoined  pendente  lite  at  the  suit  of  a  private  indi- 
vidual who  has  an  adequate  remedy  at  law  for  any  damage  which 
may  be  sustained  as  a  result  of  its  operation.96  Nor  will  the 
employment  of  detectives  to  follow  a  person  be  enjoined  as  the 
complainant  has  an  adequate  remedy  at  law  for  the  annoyance, 
inconvenience  and  injury  sustained  thereby.97  And  an  action  at 
law  on  a  bond  will  not  be  enjoined  on  the  ground  that  the  bond 
has  been  paid  and  fraudulently  assigned  to  plaintiff  since  such 
defense  is  available  at  law ;  and  especially  is  such  relief  to  be 
denied  where  plaintiff  has  already  taken  a  part  of  her  evidence, 
including  the  testimony  of  a  witness  who  is  now  dead.98  And  a 
surety  cannot  have  the  enforcement  of  a  judgment  against  him 
and  his  solvent  principal  restrained  on  the  ground  of  the  princi- 
pal's primary  liability  since  he  has  an  adequate  legal  remedy  by 
paying  the  debt  and  suing  the  principal  for  reimbursement.99  And 
the  courts  will  not  injunctively  prevent  the  existence  of  a  nuisance 
in  a  highway  where  the  remedy  by  indictment  is  sufficient  to 
abate  it.1  Nor  will  they  grant  an  injunction  to  a  debtor  arrested 
on  capias  where  he  has  an  adequate  remedy  at  law  by  motion  to 
quash  the  writ;2  nor  where  the  party  has  his  remedy  by  attach- 

95.  Martin  v.  Murphy,  129  Ind.  99.  Stein  v.  Benedict,  83  Wis.  603, 
464,    28    N.    E.     1118;     Hemsley.  v.       53  N.  W.  891. 

Myers,  45  Fed.  283.  1.  Raritan  Township  v.  Port  Read- 

96.  Floyd- Jones  v.  United  Elec.  L.  ing  R.  Co.,  49  N.  J.  Eq.  11,  23  Atl. 
Co.,  55  Misc.  R.  (N.  Y.)  529,  106  N.  127;  Smith  v.  State,  3  Zab.  130; 
Y.  Supp.  648.  State  v.  Morris,  etc..  R.  Co.,  3  Zab. 

97.  Chappell  v.  Stewart,  82  Md.  360;  Freeholders  v.  State,  13  Vroom, 
323,  33  Atl.  542,  37  L.  R.  A.  783.  263;   State  v.  Addey,  14  Vroom,  115. 

97.  Chase's  Ex'r  v.   Chase,  50  N.  2.  Turner  v.  Norton,  31   111.  App. 

J.  Eq.  143,  24  A.  914.    An  injunction  423.     See  a  good  illustration  of  the 

will    not    be    granted    to    restrain    a  rule  in  Harding  v.  Hawkins,  141  111. 

party   from    instituting  a   proceeding  572,  31  N.  E.  307,  where  an  injunc- 

in  equity  for  an  account,  etc.,  where  tion  was  refused  to  restrain  the  col- 

the  complainant  has  an  equitable  de-  lection  of  a  judgment.     Also  New  Or- 

fense   to  such   proceedings   which   he  leans  Mfg.  Co.  v.  Lowenstein  (Miss.), 

can  set  up   in   his   answer.     Hall  v.  11  So.  187;   Harrison  v.  Hill,  37  111. 

Fisher,   1   Barb.  Ch.   53.     See  Fuller  App.  30;   Dierks  v.  Highway  Comrs. 

v.  Cadwell,  6  Allen,  503.  142  111.  197.  31  N.  E.  496;  Drainage 


Comrs.  v.  Sconce,  38  111.  App.  120. 


5G 


Definition  and  Nature  of  Injunctions. 


§27 


m<ent;J  nor  will  an  injunction  be  granted  to  prevent  the  sale  of 
goods  by  an  assignee  where  an  action  of  replevin  or  trover  is 
adequate  for  their  recovery;4  nor  to  restrain  an  execution  where 
the  proper  remedy  is  by  motion  to  set  it  aside  ;5  nor  to  restrain  the 
exercise  of  the  powers  of  a  committee  to  an  insane  person  where 
their  appointment  is  void,  because  there  is  an  adequate  remedy  at 
law  by  application  to  revoke  the  appointment.6  And  a  court  haviug 
jurisdiction  of  the  parties  to  an  action  for  an  absolute  divorce, 
has  power  to  decree  in  the  judgment  awarded,  that  the  guilty 
wife  shall  be  prohibited  from  using  the  full  name,  or  surname  of 
her  husband  as  her  name  or  as  any  portion  of  her  name ;  but  where 
the  judgment  contains  such  a  provision,  the  husband  cannot,  upon 
the  wife's  subsequent  use  of  his  surname,  maintain  another  action 
to  restrain  such  use  as  he  can  obtain  relief  under  the  original 
judgment  still  in  force.7 

§  27.  The    same    subject. — In    the    settlement    of    conflicting 
claims  to  such  personal  property  as  has  no  prix  d'ajfection  a  court 


3.  Carstarphen  Warehouse  Co.  v. 
Fried,  124  Ga.  544,  52  S.  E.  598; 
Spitz  v.  Kerfoot,  42  Mo.  App.  77; 
Winans  v.  Beidler,  6  Okla.  603,  52 
Pae.  405. 

4.  McDonald  v.  Beyne,  58  Hun  (N. 
Y.),  611.     See  also  following  cases: 

Illinois. — Bodman  v.  Lake  Fork 
District,  132  111.  439,  24  N.  E.  630. 

Indiana. — Smith  v.  Goodknight,  121 
Ind.  312,  23  N.  E.  148;  Martin  v.  Orr, 
96  Ind.  27. 

Iowa. — Council  Bluff  v.  Stewart,  51 
Iowa,  385. 

Kansas. — Van  Natta  Lynds  Drug 
Co.  v.  Gerson,  43  Kan.  660,  23  Pac. 
1071;  Martin  v.  Ingham,  38  Kan. 
641,  17  Pac.  162. 

Maryland. — Welde  v.  Scotten,  59 
Md.  72;   Frazier  v.  White,  49  Md.  1. 

Michgan. — Detroit  Base  Ball  Club 
t.  Deppert,  61  Mich.  63. 

New    Jersey. — Roemer    v.    Conlon, 


45  N.  J.  Eq.  234,  19  Atl.  664;  Bailey 
v.  Schnitzius,  45  N.  J.  Eq.  184,  16 
Atl.  680. 

Wisconsin. — Wolf  River  Co.  v.  Peli- 
can Boom  Co.,  83  Wis.  426,  53  N.  W. 
678. 

Where  two  persons  claimed 
logs  is  possession  of  a  boom  com- 
pany a  mandatory  injunction  was  re- 
fused to  compel  the  company  to  de- 
liver the  logs  to  one  of  them  as  there 
was  a  clear  remedy  at  law  by  re- 
plevin or  trover.  Wolf  River  Lum- 
ber Co.  v.  Pelican  Boom  Co.,  83  Wis. 
426,  53  N.  W.  678. 

5.  Moulton  v.  Knapp,  88  Cal.  446, 
26  Pac.  210,  aff'g  85  Cal.  385,  24  Pac. 
803. 

6.  Lance  v.  McCoy,  34  W.  Va.  416, 
12  S.  E.  728. 

7.  Blanc  v.  Blanc,  21  Misc.  R.  (N. 
Y.),  268,  47  N.  Y.  Supp.  694. 


57 


§27 


Definition  and  Nature  of  Injunctions. 


of  law  is  the  peculiarly  appropriate  tribunal,  and  an  injunction 
will  not  be  granted  in  the  absence  of  imminent  irreparable  injury, 
even  though  one  of  the  parties  be  a  trustee  claiming  under  a  trust 
deed.8  And  where  executors  claiming  certain  property  resorted  to 
a  court  of  chancery  to  restrain  certain  creditors  from  taking  it, 
on  the  ground  that  it  was  needed  for  the  payment  of  the  debts  of 
their  testator,  and  it  was  not  shown  that  it  was  in  fact  so  needed, 
but  the  reverse  appeared,  it  was  held  that  if  the  fact  were  other- 
wise, still,  in  the  absence  of  insolvency,  the  remedy  would  be  at 
law.9  It  is  also  a  familiar  rule  both  here  and  in  England  that  an 
action  at  law  will  not  be  enjoined  when  the  defense  to  it  can  be 
made  as  well  at  law  as  in  equity.10  And  generally  an  equitable 
action  will  not  lie  to  prevent  a  non-user  of  a  railroad  franchise,  as 
there  is'  a  sufficient  remedy  by  mandamus  or  indictment.11     Nor 


8.  Moore  v.  Steelman,  80  Va.  331; 
Sheppards  v.  Turpin,  3  Gratt.  373. 

9.  Johnson  v.  Connecticut  Bank, 
21  Conn.  148. 

10.  United  States. — Scottish  Union 
&  N.  I.  Co.  v.  Bowland,  196  U.  S.  611, 
49  L.  Ed.  619,  25  S.  Ct.  345;  Insur- 
ance Co.  v.  Bailey,  13  Wall.  616,  20 
L.  Ed.  501;  Northern  Pac.  R.  Co.  v. 
Cannon,  49  Fed.  oi7. 

Georgia. — Waters  v.  Waters..  124 
Ga.  349,  52  S.  E.  425. 

Massachusetts. — Payson  v.  Lamson, 
134  Mass.  593;  Anthony  v.  Valentine, 
130  Mass.  119;  Jones  v.  Newhall,  115 
Mass.  244,  252;  McBride  v.  Little, 
115  Mass.  308;  Fuller  v.  Cadwell,  6 
Allen,    503. 

Minnesota. — Schumaker  v.  Board 
of  Commissioners  (Minn.  1905),  105 
N.  W.  1125. 

Oklahoma. — Thompson  v.  Tucker 
(Okla.  1905),  83  Pac.  413. 

Wisconsin. — Chicago  &  N.  W.  Ry. 
Co.  v.  McKeigue,  126  Wis.  574,  105 
N.  W.   1030. 

England. — Lee  v.  Lancashire,  etc.. 
Ry.,  L.  R.  6  Ch.  527,  533;  Ochsenbein 


v.  Papelier,  L.  R.  8  Ch.  695 ;  Kemp  v. 
Tucker,  L.  R.  8  Ch.  369;  Hoare  v. 
Bremridge,  L.  R.  8  Ch.  22 ;  Johnston 
v.  Young,  I.  R.  10  Eq.  403;  Life  As- 
sociation v.  McBlain.  I.  R.  9  Eq.  176. 

See  §  577  herein. 

11.  Moore  v.  Brooklyn  City  R.  Co., 
108  N.  Y.  98,  104,  15  N.  E.  191,  where 
Andrews,  J.,  said:  "The  threatened 
violation  of  a  mere  naked  legal  right, 
unaccompanied  by  special  circum- 
stances, is  not  a  ground  for  injunc- 
tion when,  as  in  this  case,  legal  reme- 
dies are  adequate  to  redress  any  re- 
sulting injury.  McHenry  v.  Jewett, 
90  N.  C.  58.  If  the  defendant  violates 
its  charter,  or  fails  to  perform  the 
conditions  under  which  it  exercises 
its  franchises,  or  if  in  the  manage- 
ment of  its  trains  or  business  it  un- 
lawfully occupies  or  obstructs  the 
public  highway,  the  remedy  in  the 
one  case  is  by  a  proceeding  in  behalf 
of  the  people  by  the  attorney  general 
to  annul  or  forfeit  its  franchise,  and 
in  the  other  by  indictment  or  proceed- 
ings under  the  statute." 

Where    remedy    by    mandamus 


58 


Definition  and  Nature  of  Injunctions.  §  27 

will  an  injunction  bo  granted  to  prevent  the  transfer  or  diversion 
of  evidences  of  debt  where  the  same  result  can  be  attained  by  the 
process  of  garnishment.12  Again,  in  an  action  to  prevent  a  cloud 
upon  title  or  to  quiet  title  a  party  is  not  entitled  to  a  temporary 
injunction  unless  he  shows  a  threatened  injury  likely  to  accrue 
pending  the  litigation  which  would  not  be  averted  by  filing  notice 
of  lis  pendens.13  And  an  original  suit  for  an  injunction  will  not 
lie  to  try  the  title  to  land  held  by  defendant  under  claim  of  right 
where  ejectment  is  the  appropriate  action,  though  a  temporary 
injunction  pendente  lite  might  be  granted  as  auxiliary  to  the  action 
at  law.14  And  where  a  contract  stipulates  for  the  doing  of  a  cer- 
tain act,  or  for  the  payment  of  a  certain  sura  in  lieu  thereof,  equity 
will  not  compel  performance  by  injunction  but  will  leave  the 
obligee  to  his  remedy  of  damages  at  law.  Thus  where  a  person 
bound  himself  not  to  practice  dentistry  for  a  designated  time 
within  the  city  of  Hartford,  but  stipulated  that  he  might  do  so 
on  the  payment  of  $1,000,  it  was  held  that  an  injunction  would  not 
lie  to  restrain  him  from  a  breach  of  the  contract,  but  that  the 
remedy  was  an  action  at  law  to  recover  the  sum  named,  and  that 
the  fact  that  he  was  insolvent  would  not  alter  the  respective  rights 
of  the  parties  to  such  contract  nor  the  remedy  to  be  pursued.15 

injunction  will   not   lie.       See   §    30  money."       See,    also,    Hannahan    v. 

herein.  Nichols,.  17  Ga.  77,  79. 

12.    Tumlin    v.    Vanhorn,    77    Ga.  13.  Grant    County    v.    Colonial  & 

315,      3   S.  E.  264,  where  the  court  United  States  Mortgage  Co.,  3  S.  D. 

held  firmly  to  the  rule  that  a  party  390,   53   N.   W.   746.      A   preliminary 

should  not  have  an  injunction  where  injunction  will  not  be  granted  where 

he  has  a  plain  remedy  at  law  for  the  it  is  not  essential   to  the  complain- 

enforcement   of    his    contract    rights:  ant's  rights,  and  when  the  filing  of  a 

"  In  this  case  he  could  have  instituted  notice    of    lis    pendens    will    answer, 

his  suit  at  law  and  reached  the  evi-  Waddell  v.  Bruen  (1846),  4  Edw.  Ch. 

dence  of  debt  enjoined  by  process  of  671. 

garnishment;    and  when   he   obtained  14.  Smith  v.  Jamieson,  91  Mb.  13, 

his  judgment  might  have  levied  the  3  S.  W.  212;  Janney  v.  Spedden,  38 

execution    issuing    thereon    upon    the  Mo.    395;    Majors    Heirs  v.  Rice.  57 

land  by  first  making  the  defendant  a  Mo.  385;  More  v.  Perry,  61  Mo.  174; 

party    thereto,    as    provided    by    the  Tamm  v.  Kellogg,  49  Mo.  119. 
statute,  or  he   might  have  proceeded  15.  Dills  v.  Doebler,  62  Conn.  366, 

in  like  manner  to  levy  an  attachment  26   A.    398,   Andrews,    C.   J. :       "  The 

upon     the     land     for     his     purchase  plaintiff  having  contracted    to    take 

59 


§28 


Definition  and  Nature  of  Injunctions. 


§  28.  Same  subject;  further  illustrations. — A  very  good  illus- 
tration of  the  rule  under  consideration  is  afforded  by  a  decision 
in  the  court  of  last  resort  in  the  State  of  New  York  that  the  col- 
lection of  an  assessment  will  not  be  enjoined  on  the  ground  that 
the  statute  under  which  it  was  imposed  is  unconstitutional,  nor 
on  the  ground  that  the  officer  making  the  assessment  failed  to 
comply  with  the  statute  providing  therefor,  there  being  an 
adequate  remedy  at  law  in  both  cases;  for  in  the  first  case  the 
statute  being  unconstitutional  the  tax  warrant  to  collect  the  assess- 
ment would  be  void  and  the  sheriff  acting  thereunder  would  be  a 
trespasser,  and  the  owner  of  property  levied  on  thereunder  could 
by  replevin  or  action  of  trespass  regain  his  property  or  recover 
its  value,  and  the  action  would  bring  up  the  question  of  the 
statute's  validity;  while  in  the  second  case  the  property  owner 
would  have  a  sufficient  remedy  by  certiorari.16    Again,  a  gas  corn- 


damages  must  seek  his  remedy  in  a 
court  of  law.  The  brief  of  the  plain- 
tiff's counsel  suggests  that  the  de- 
fendant is  insolvent  and  that  the 
plaintiff  could  not  collect  the  dam- 
ages if  he  should  obtain  a  judgment 
therefor.  If  it  were  so  that  fact  could 
not  give  to  a  court  of  equity  the  right 
to  issue  an  injunction.  It  is  the  con- 
tract itself  which  gives  to  or  takes 
away  from  the  court  its  jurisdiction, 
not  the  wealth  or  poverty  of  the  de- 
fendant." Citing  Nessle  v.  Reese,  19 
Abb.  Pr.  240,  29  How.  Pr.  382;  Shiell 
v.  McNitt,  9  Page,  101;  Skinner  v. 
Dayton,  2  Johns.  Ch.  526,  535;  Pom- 
eroy,  Eq.  Jur.,  sec.  447. 

16.  United  Lines  Tel.  Co.  v.  Grant, 
137  N.  Y.  7,  32  N.  E.  1005,  where  the 
court  said:  "Here  the  process  is- 
sued to  the  sheriff  was  void  on  its 
face,  if  the  authority  which  it  recited 
was  merely  an  unconstitutional  law; 
and  where  the  process  is  so  void  it 
gives  no  protection  to  the  officer.  Van 
Rensselaer  v.  Witbeck.  7  N.  Y.  517. 
Beyond  that  if  the  plaintiff's  property 


should  be  sold  on  the  warrant  the 
purchaser  would  get  no  title,  unless 
he  could  show  constitutional  author- 
ity for  the  issue  of  the  warrant,  and 
the  plaintiff  by  replevin  or  action  of 
trespass  could  retain  his  property  or 
recover  its  value  and  the  action 
would  bring  up  the  precise  question 
of  the  constitutionality  of  the  acts  as- 
sailed. Lennon  v.  Mayor,  55  N.  Y. 
361.  There  was  thus  a  complete  and 
adequate  remedy  at  law.  Nothing  in 
the  complaint  or  in  the  facts  shows 
that  the  mere  collection  of  the  war- 
rant would  be  an  irreparable  injury 
to  the  plaintiff's  business.  To  hold 
that  would  be  to  expose  every  execu- 
tion to  an  injunction.  Nor  is  it  of 
any  consequence  if  ihe  State  could 
not  be  sued  for  a  restoration  of  the 
money  collected.  The  cases  in  the 
Federal  Circuit  Court  of  which  Wool- 
sey  v.  Dodge,  6  McLean.  142,  ia  an 
example,  in  which  injunctions  were 
issued  to  restrain  the  collection  of  a 
tax  imposed  by  an  unconstitutional 
law,  went  distinctly  upon  the  ground 


CO 


Definition  and  Nature  of  Injunctions. 


§28 


pany  cannot  enjoin  a  breach  of  contract  by  a  town  in  the  use  of 
open  lights  as  it  can  recover  for  an  excessive  use  of  gas  by  an 
action  at  law.17  And  where  a  mining  lessee  is  in  arrears  as  to 
royalties  and  so  the  lease  to  him  is  annulled,  the  lessor  cannot 
enjoin  him  from  further  mining,  as  he  has  his  legal  remedy  by 
assumpsit  for  the  arrears  or  in  ejectment  for  the  land.18 


that  the  levy  would  be  an  annually 
accruing  grievance  until  the  State 
statute  should  be  repealed,  and  in- 
volve a  multitude  of  suits  at  law. 
Nothing  of  the  kind  exists  here.  The 
assessment  is  not  a  tax,  nor  is  it  an- 
nual, nor  is  there  any  collision  be- 
tween State  and  Federal  adjudication 
to  complicate  the  situation. 
As  respects  the  second  ground  of  the 
action  which  concedes  the  constitu- 
tional validity  of  the  statutes,  but 
urges  that  the  officer  disobeyed,  and 
varied  from  their  terms,  and  did  not 
lawfully  and  regularly  make  the  as- 
sessment, it  is  sufficient  to  say  that 
the  plaintiff  had  an  ample  and  suffi- 
cient remedy  by  certiorari.  Code,  sec. 
2140;  Mayor  v.  Davenport,  92  N.  Y. 
604;  Canal  Co.  v.  Atkins,  121  N.  Y. 
246,  24  N.  E.  319.  It  is  no  answer  to 
urge  that  the  allowance  of  the  writ 
is  discretionary.  That  discretion  is 
not  arbitrary,  and  it  must  be  assumed 
that  the  writ  will  always  issue  where 
there  is  a  proper  subject  for  review. 
There  was  no  sufficient  ground  for  a 
suit  in  equity."  In  Robens  v.  Bar- 
rett, 49  N.  Y.  St.  172,  the  dispute 
was  over  fish  enclosed  and  propagated 
in  a  private  pond.  The  court  after 
citing  authorities  to  show  that  the 
fish  were  owned  by  him  who  planted 
them  and  that  interference  with  the 
owner's  right  was  a  trespass  for 
which  an  action  of  trespass  would  lie, 
said:  "That  being  so  an  injunction 
would  not  lie  to  restrain  its  removal, 


even  if  the  title  was  in  dispute,  or 
concededly  in  the  plaintiff.  In  that 
case  trespass,  or  an  action  at  law  to 
discover  the  value  of  the  property 
taken,  or  replevin,  an  action  to  re- 
cover the  possession  of  personal  prop- 
erty wrongfully  taken  or  detained 
would  be  the  proper  remedy.  The 
power  of  a  court  of  equity  could  not 
be  invoked  in  such  a  case  for  the  rea- 
son that  the  party  has  an  adequate 
remedy  at  law." 

17.  Saltsburg  Gas  Co.  v.  Salts- 
burg,  138  Pa.  St.  250,  20  Atl.  844; 
Grubb's  Appeal,  90  Pa.  St.  228,  235. 

18.  Hoch  v.  Bass,  133  Pa.  St.  328, 
19  Atl.  360.  Where  A  claimed  to  be 
the  owner  in  possession  of  land, 
B  entered  on  the  unimproved 
part  thereof,  under  claim  of 
title,  cut  timber,  sunk  shafts,  and 
began  the  mining  of  coal.  Held,  that 
in  the  absence  of  circumstances  of 
imminent  peril  requiring  a  speedier 
remedy  than  any  at  law  A  was  not 
entitled  to  an  injunction.  The  court 
said :  "  If  the  defendants  had  good 
title  they  were  not  trespassers.  It 
they  have  no  valid  title  the  law  gives 
a  full  and  adequate  remedy  for  their 
trespass  unless  the  injury  is  irrepar- 
able. For  cutting  timber  trees  and 
converting  them  to  their  own  use 
trespassers  are  liable  to  pay  treble 
the  value  thereof.  A  plaintiff  in 
ejectment  may  have  a  writ  of  estrepe- 
ment  to  prevent  the  mining  of  coal, 
and  the  proceedings  respecting  such 


01 


§29 


Definition  and  Natuee  of  Injunctions. 


§  29.  Same  subject ;  certiorari  and  appeal. — Generally  an 
injunction  will  not  lie  in  favor  of  one  who  has  a  sufficient  remedy 
by  certiorari.19  Thus  an  injunction  will  not  lie  to  restrain  the 
opening  of  a  street  at  a  suit  of  the  owner  of  the  land  required  for 
the  street,  since  he  has  a  plain,  adequate,  and  speedy  remedy  at 
law  by  certiorari  to  test  the  power  of  the  council  to  open  the 
street.20  And  an  injunction  against  a  judgment  will  not  be 
granted  unless  it  is  shown  that  there  is  not  a  sufficient  remedy  by 
appeal  ;21  though  such  remedy  be  given  by  special  statute.22     But 


writ  are  regulated  by  statute.  In 
this  case  by  bringing  one  suit  in  eject- 
ment the  plaintiff  will  be  entitled  to 
as  effective  a  remedy  to  stay  waste 
as  an  injunction  in  equity.  If  con- 
fined to  the  law  courts,  the  plaintiff 
has  no  occasion  for  a  multitude  of 
actions  to  protect  its  rights."  Lein- 
inger's  Appeal,  106  Pa.  St.  398. 

19.  Grandchamp  v.  McCormick 
(Mich.,  1907),  114  IS.  W.  80;  United 
Lines  Tel.  Co.  v.  Grant,  137  N.  Y.  7, 
32  N.  E.  1005;  Parker  v.  Fogle  (S.  C, 
1907 ) ,  59  S.  E.  707.  See  also  Lasher 
v.  Annunziata,  119  111.  App.  653.  In 
Texas  when  a  justice  of  the  peace 
grants  a  new  trial  without  notice  to 
the  adverse  party  of  the  application 
therefor  and  the  adverse  party  does 
not  appear  at  the  second  trial,  he 
may  enjoin  the  collection  of  the  judg- 
ment rendered  at  the  second  trial  as 
being  void  for  want  of  jurisdiction, 
or  he  may  have  a  certiorari  to  bring 
the  case  into  the  Disrict  Court  to 
have  the  judgment  set  aside  and  the 
cause  tried  again.  Aycock  v.  Will- 
iams, 18  Tex.  392.  See,  also,  Gulf, 
etc.,  R.  Co.  v.  Rawlins,  80  Tex.  579, 
16  S.  W.  430,  where  it  was  held  an 
injunction  would  lie  because  no  ap- 
peal or  certiorari  could  be  had  to  set 
aside  a  void  justice's  judgment  for 
less  than  $20. 


20.  Rockwell  v.  Bowers,  88  Iowa, 
88,  55  N.  VV.  1. 

21.  Arkansas. — Shaul  v.  Dupre,  48 
Ark.  331. 

Illinois. — Palmer  v.  Gardiner,  77 
111.  143. 

Indiana. — Board  of   Commissioners 
v.  Wolff   (Ind.   1905),  76  N.  E.  247; 
De   Hoven  v.   Covalt,    83    Ind.   344; 
Schwab  v.  Madison  City,  49  Ind.  329. 

Iowa. — Kinney  v.  Howard  (Iowa, 
1907),  110  N.  W.  282. 

Louisiana. — Savoie  v.  Thibodaux, 
29  La.  Ann.  51;  Naughton  v.  Dink- 
grave,  25  La.  Ann.  538. 

Minnesota. — Schumaker  v.  Board 
of  Commissioners  (Minn.  1906),  105 
N.  W.   1125. 

Texas. — Manning  v.  Hunt,  36  Tex. 
118. 

See,  also,  §  555  herein. 

A  party  who  lias  lost  the  right 
to  appeal  through  negligence  or  by 
reason  of  his  defective  proceedings 
thereby  forfeits  his  right  to  an  in- 
junction. Palmer  v.  Gardiner,  77  111. 
143;   Long  v.  Smith,  39  Tex.  160. 

In  Gulf,  etc.,  R.  Co.  v.  Bacon  (Tex. 
1893),  21  S.  W.  783,  it  is  held  that 
the  fact  that  each  of  two  partners 
brings  a  separate  suit  in  his  individ- 
ual name  against  a  railroad  company 
for  killing  live  stock  on  its  track,  so 
as  to  deprive  the  railroad  company  of 


62 


Definition  and  Nature  of  Injunctions. 


30 


a  defendant  may  have  his  remedy  by  injunction  instead  of  by 
appeal  where  he  was  not  served  with  process  in  the  action  in  which 
the  judgment  was  obtained  against  him.23  And  when  the  com- 
missioners of  a  county  threaten  unlawfully  to  remove  a  county- 
seat,  and  it  does  not  appear  that  they  have  entered  any  order  there- 
for from  which  an  appeal  could  have  been  taken,  the  removal  will 
be  enjoined.24 

§  30.  Injunction  not  granted  where  mandamus  is  appropriate. 

— It  is  a  general  rule  that  where  mandamus  is  the  proper  remedy 
an  injunction  will  not  be  granted.25  Where  a  person  duly  qualified 
is  prevented  from  taking  possession  of  an  office  by  a  former  incum- 
bent, the  title  to  the  office  will  not  be  determined  by  means  of  an 
injunction,  but  by  appropriate  proceedings  under  writ  of  man- 
damus on  the  law  side  of  the  court.26    And  to  enforce  the  mainte- 


the  right  of  appeal  by  praying  for 
judgment  in  each  case  below  the 
jurisdictional  amount  of  the  County 
Court  will  not  authorize  an  injunc- 
tion against  the  prosecution  of  the 
actions,  since  tne  company  has  the 
right  to  consolidate  them,  and  then 
appeal  to  the  County  Court  if  the 
judgment  is  adverse. 

A  taxpayer  may  apply  for 
an  injunction  against  the  payment 
of  a  claim  against  a  county  al- 
lowed by  the  board  of  supervisors; 
such  allowance  is  not  a  judgment  the 
validity  of  wnich  can  be  questioned 
only  by  appeal  or  certiorari.  Hos- 
pers  v.  Wyatt,  63  Iowa,  264,  19  N. 
W.  204,  where  the  court  said :  "  It 
will  be  conceded,  if  the  board  acted 
judicially,  that  injunction  is  not  the 
proper  remedy.  That  the  board  of 
supervisors  in  relation  to  many  mat- 
ters act  judicially  will  also  be  con- 
ceded; but  that  they  do  so  in  the 
allowance  of  claims  against  the 
county,  cannot  we  think  be  the  rule. 
If  this  is  so,  then  the  determination 


of  the  board,  while  it  may  not  have 
the  force  and  effect  of  a  judgment  in 
so  far  as  relates  to  its  enforcement, 
must  of  necessity  be  final  and  con- 
clusive as  an  adjudication,  so  far  as 
the  amount  allowed  is  concerned,  if 
the  same  is  not  annulled  or  set  aside 
in  some  direct  proceeding,  such  aa 
an  appeal  or  certiorari." 

22.  People  v.  Wasson,  64  N.  Y. 
167. 

23.  Robinson  v.  Reid,  50  Ala.  69. 

24.  Doan  v.  Board  of  Com'rs  of 
Logan  County,  2  Idaho,  7bl,  26  Pac. 
167. 

25.  Mason  v.  Byrley,  26  Ky.  Law 
Rep.  487,  84  S.  W.  767;  Harley  v. 
Lindemann,  129  Wis.  514,  109  N.  W. 
570.  See,  also,  cases  cited  in  this 
section. 

26.  Commissioners  v.  School 
Com'rs,  77  Md.  283,  26  Atl.  115, 
where  the  settled  rule  is  thus  ex- 
pressed: "When  a  person  has  been 
duly  appointed  to  a  public  office,  and 
has  taken  the  prescribed  oath,  and 
done  such  other  things  as  are  made 


63 


§31 


Definition  and  Nature  of  Injunctions. 


nance  of  a  railroad  station  at  a  certain  place  mandamus  is  the 
proper  remedy  and  not  an  injunction  to  prevent  its  discontinu- 
ance.27 Nor  will  a  mandatory  injunction  issue  to  compel  a  railroad 
company  to  construct  a  bridge  over  a  public  road,  the  writ  of 
mandamus  in  the  common  law  courts  being  an  adequate  and 
proper  remedy.28  But  it  has  been  decided  that  relief  by  injunction 
will  be  granted  to  a  hotel  owner  and  his  tenants  where  a  water  com- 
pany refuses  to  furnish  water  to  the  hotel,  relief  by  mandamus 
not  being  effectual  as  to  the  tenants.29  Both  a  specific  legal  right 
and  the  absence  of  an  effectual  legal  remedy  must  concur  to 
authorize  the  issuing  of  a  mandamus.30 

§  31.  Where  legal  remedy  inadequate. — In  applying  the  rule 
that  an  injunction  will  not  be  granted  where  there  is  an  adequate 
remedy  at  law  but  that  the  remedy  at  law  must  be  as  practical  and 
efficient  as  that  in  equity  it  is  decided  that  a  party  may  be  granted 


prerequisites  by  law  he  has  a  right 
to  enter  upon  the  discharge  of  nis 
duties.  If  he  is  prevented  by  a  for- 
mer incumbent  from  obtaining  pos- 
session of  the  office,  the  law  affords 
a  perfectly  adequate  and  complete 
remedy.  In  this  State  the  usual  and 
appropriate  proceedings  is  by  writ  of 
mandamus,  of  which  a  great  many 
instances  are  found  in  our  reports. 
It  is  a  legal  remedy;  tftat  is  to  say, 
it  is  administered  on  the  law  side  of 
the  court  as  contradistinguished 
from  its  equitable  jurisdiction.  Hence 
it  is  held,  as  there  is  a  complete  and 
adequate  remedy  at  law,  that  a  court 
of  equity  is  debarred  from  determin- 
ing the  title  to  an  office  disputed  be- 
tween   conflicting   claimants." 

27.  Jacquelin  v.  Erie  R.  Co.  (N. 
J.  Ch.  1905),  61  Atl.  18. 

28.  New  York  &  G.  L.  R.  Co.  v. 
Montclair,  47  N.  J.  Eq.  591,  21  Atl. 
493,  where  the  court  said:  "The 
power  of  the  common  law  courts  to 


compel  the  performance  of  duties  ot 
the  kind  under  consideration  which 
were  imposed  upon  railroad  com- 
panies were  and  are  complete.  Tho 
appropriate  writ  for  the  accomplish- 
ment of  that  purpose  is  the  writ  of 
mandamus.  No  case  can  hold  by  the 
application  of  correct  principle  that 
a  court  of  equity  will  issue  a  manda- 
tory injunction  in  any  instance  whera 
the  duty  imposed  is  of  that  official  or 
corporate  quality  which  confers  upon 
a  court  of  common  law  the  com- 
petency to  adequately  compel  its  ex- 
ecution." See,  also,  State  v.  Pater- 
son,  etc.,  R.  Co.,  43  N.  J.  L.  505. 

29.  McDowell  v.  Avon-By  The  Sea 
Land  &  I.  Co.  (N.  J.  Ch.  1906),  63 
Atl.  13. 

30.  State  v.  Paterson,  etc.,  R.  Co., 
43  N.  J.  L.  505;  State  v.  Holliday,  3 
Halst.  205;  State  v.  Newark,  6 
Vroom,  396;  State  v.  Union  Town- 
ship, 8  Vroom,  84;  Queen  v.  Hull, 
etc.,  R.  Co.,  6  Q.  B.  70. 


C4 


Definition  and  Nature  of  Injunctions. 


§31 


an  injunction  restraining  the  doing  of  certain  acts  notwithstanding 
he  has  a  remedy  at  law,  it  appearing  that  the  latter  remedy  is 
clearly  inadequate.31  So  an  injunction  will  be  granted  to  an 
innocent  purchaser  of  stock  and  good  will  of  a  business  to  prevent 
the  sale  thereof  by  the  sheriff  under  attachments,  where  the  dam- 
ages recoverable  in  trespass  or  replevin  would  be  only  for  the 
value  of  the  stock  and  not  for  the  destruction  of  plaintiff's  business, 
and  would  therefore  be  an  inadequate  remedy.33     And  where  a 


31.  United  States. — Jewett  Bros, 
v.  Chicago  M.,  &  St.  P.  R.  Co.,  156 
Fed.  160;  Hoist  v.  Savannah  Elec. 
Co.,  13  Fed.  931. 

Connecticut. — New  York,  N.  H.  & 
H.  R.  Co.  v.  Scovill,  71  Conn.  136, 
41  Atl.  246,  42  L.  R.  A.  157. 

Nebraska. — Lowe  v.  Prospect  Hill 
Cemetery  Ass'n,  58  Neb.  94,  78  N.  W. 
488,  46  L.  R.  A.  237. 

New  York. — Bolivar  v.  Pittsburg, 
S.  &  N.  R.  Co.,  179  N.  Y.  523,  71  N. 
E.  1141. 

Pennsylvania. — Maubeck  v.  Jones, 
21  Pa.  Co.  Ct.  Rep.  300. 

32.  Where  averment  a  mere 
conclusion. — An  averment  that  a 
plaintiff  "  has  no  speedy  and  ade- 
quate remedy  at  law  "  is  a  mere  con- 
clusion of  law  which  is  held  to  be 
valueless  in  the  absence  of  an  aver- 
ment of  facts  supporting  it.  Streator 
v.  Linscott  (Cal.  S.  C.  1908),  95  Pac. 
42;  Ehrich  v.  Grant,  111  App.  Div. 
(N.  Y.)    196,  97  N.  Y.  Supp.  600. 

33.  North  v.  Peters,  138  U.  S.  271, 
11  S.  Ct.  346,  34  L.  Ed.  936,  where 
Lamar,  J.,  said :  "The  main  ground  re- 
lied on  by  the  appellant  is,  that  the  re- 
lief sought  should  be  refused,  because 
the  appellee  had  a  plain  and  complete 
remedy  at  law,  to  wit,  either  the 
action  of  trespass  or  replevin.  The 
answer  to  this  is,  that  the  measure 
of  damages  in  an  action  of  trespass 


could  not  have  exceeded  the  value  of 
the  property  seized,  with  interest 
thereon  from  the  date  of  the  seizure; 
and  that  the  only  remedy  in  an  action 
of  replevin  would  have  been  limited 
to  a  recovery  of  the  property,  and 
damages  for  its  detention  with  costs. 
It  does  not  need  argument  to  show 
that  neither  of  these  actions  would 
afford  as  complete,  prompt  and  effi- 
cient a  remedy  for  the  destruction  of 
the  business  which,  with  the  goods 
levied  upon,  constituted  the  appellee's 
entire  estate  and  pecuniary  resources, 
as  would  be  furnished  by  a  court  of 
equity  in  preventing  such  an  injury." 
Compare  the  similar  case  of  Watson 
v.  Sutherland,  5  Wall.  (U.  S.)  74, 
78,  79,  18  L.  Ed.  580.  See, 
also,  Ambrose  v.  Buffalo,  20  N. 
Y.  Supp.  129.  In  Corning  v. 
Troy,  etc.,  Factory,  50  N.  Y.  191 
206,  the  court  said:  "Upon  es- 
tablished principles  this  is  a  proper 
case  of  equity  jurisdiction.  First, 
upon  the  ground  that  the  remedy  at 
law  is  inadequate.  The  plaintiffs  arb 
entitled  to  the  flow  of  the  stream  in 
its  legal  channel.  Legal  remedies 
cannot  restore  it  to  them  and  secure 
them  in  the  enjoyment  of  it.  Hence 
the  duty  of  a  court  of  equity  to  in- 
terpose for  the  accomplishment  of 
that  result." 


65 


§32 


Definition  and  Natuke  of  Injunctions. 


lessee  is  in  possession  of  leased  premises  and  entitled  to  the  natural 
gas  underlying  them,  he  can  enjoin  the  lessor  from  drilling  on  the 
leasehold  as  the  damage  likely  to  result  from  the  threatened  waste 
would  be  entirely  incapable  of  measurement  at  law,  if  not  irrepar- 
able.34 The  illegal  sale  of  a  church  pew  under  an  attachment  will 
also  be  prevented  by  injunction  on  the  ground  that  it  would  outrage 
the  owner's  religious  feelings  and  would  be  without  adequate 
remedy  at  law.35  And  a  taxpayer  may  maintain  injunction  to 
prevent  the  issue  of  corporate  bonds  as  there  is  no  other  remedy  of 
equal  power  and  efficiency;36  and  he  may  likewise  be  granted  an 
injunction  restraining  the  unlawful  expenditure  of  the  public 
funds  by  municipal  officers.37  And  the  enforcement  of  a  statute 
which  is  unconstitutional  may  be  enjoined  by  a  court  of  equity 
where  the  complainant  has  no  other  adequate  remedy  at  law.38 
Again,  the  granting  of  an  injunction  restraining  the  unlawful 
dealing  in  special  tickets  which  are  limited  to  the  original  pur- 
chaser will  not  be  prevented  by  the  fact  that  the  carriers  may 
bring  numerous  suits  to  restrain  the  misuse  of  such  tickets  by 
brokers  and  purchasers.39 

§  32.  Adequate    remedy    in    Federal    courts. — The    Eevised 


34.  Westmoreland  &  Cambria  Nat. 
Gas  Co.  v.  De  Witt,  130  Pa.  St.  235, 
18  Atl.  724.  See  Chartier's  Block 
Coal  Co.  v.  Mellon,  152  Pa.  St.  286, 
25  Atl.  597;  Mansfield  Coal  &  C.  Co. 
v.  Mellon,  152  Pa.  St.  286,  25  Atl.  601, 
where  it  was  held  the  lessee  or 
grantee  would  be  protected  as  far  as 
possible  by  the  decree  with  due  re- 
gard to  the  rights  of  third  parties 
and  then  left  to  his  remedy  at  law. 

35.  Deutsch  v.  Stone  (Ohio  Com. 
Pleas),  27  Wkly  Law  Bui.  20.  In 
Lathrop  v.  Eisner,  93  Mich.  599,  53 
N.  W.  791,  the  court  said:  "We 
think  equity  may  well  take  jurisdic- 
tion of  this  case.  As  was  said  in 
Nye  v.  Clark,  55  Mich.  599,  22  N. 
W.  57:    No  action  of  damages  could 


give  adequate  redress  to  a  party  who 
is  hemmed  in  so  as  to  have  no  peace- 
able egress  from  his  own  farm.  See, 
also,  Wilmarth  v.  Woodcock,  66  Mich. 
331,  33  N.  W.  400;  Morgan  v.  Meuth, 
60  Mich.  238,  27  N.  W.  509;  Cook  v. 
Mayor,  L.  R.  6  Eq.  177;  Welsh  v. 
Taylor,  2  N.  Y.  Supp.  815." 

36.  Vvinamac  Town  v.  Huddleston, 
132  Ind.  217,  31  N.  E.  561;  Denny  v. 
Denny,  113  Ind.  22,  14  N.  E.  593; 
Bishop  v.  Moorman,  98  Ind.  1 ;  Wat- 
son v.  Sutherland,  5  Wall.  (U.  S.) 
74,   18  L.  Ed.  580. 

37.  Cascaden  v.  Waterloo,  106 
Iowa,  673,  77  N.  W.  333. 

38.  Jewett  Bros.  v.  Small  (S.  D. 
1905),   105  N.  W.  738. 

39.  Nashville,  C.  &  St.  L.  R.  Co.  v. 
McConnell,  82  Fed.  65. 


60 


Definition  and  Nature  of  Injunctions. 


§32 


Statutes  of  the  United  States  provide  that  "  suits  in  equity  shall 
not  be  sustained  in  either  of  the  courts  of  the  United  States  in  any 
case  where  a  plain,  adequate  and  complete  remedy  may  be  had  at 
law ;"  40  and  the  object  of  this  provision  was  to  preserve  to  the 
defendant  his  constitutional  right  to  a  trial  by  jury,41  and  was 
declaratory,  serving  merely  to  emphasize  the  rule  already  exist- 
ing.42 Thus,  in  a  Federal  court  a  bill  in  equity  will  not  lie  if  it 
is  in  substance  and  effect  an  ejectment  bill,  and  if  the  relief  it 
seeks  can  be  obtained  at  law  by  an  action  in  ejectment.43  The 
remedy  at  law  is  not  inadequate  merely  because  it  fails  to  produce 
the  money  but  because  in  its  nature  it  is  not  fitted  or  adapted  to 
the  end  in  view.44  In  the  Federal  courts  an  execution  will  be 
enjoined  in  the  absence  of  fraud  where  otherwise  commercial  ruin 
would  result  to  an  innocent  defendant  in  the  closing  of  his  store 
and  the  destruction  of  his  business.45  Where  the  remedy  at  law  is 
not  as  practicable  and  efficient  to  the  ends  of  justice  and  its  prompt 
administration,  both  in  respect  to  the  final  relief  and  the  mode  of 
obtaining  it,   the   aid   of  equity  and   injunctive   relief   may   hf 


40.  U.  S.  R.  S.  §  723. 

41.  Hipp  v.  Babin,  19  How.  271, 
15  L.  Ed.  633. 

42.  Lewis  v.  Cocks,  23  Wall,  466, 
23  L.  Ed.  70;  New  York  Guaranty  & 
Indemnity  Co.  v.  Memphis  Water  Co., 
107  U.  S.  214,  2  s.  Ct.  279,  27  L. 
Ed.   484. 

43.  Killian  v.  Ebbinghaus,  110  U. 
S.  568.,  573,  4  S.  Ct.  232,  28  L.  Ed. 
246,  where  the  court  said:  "This 
case  is  similar  to  the  leading  case 
of  Hipp  v.  Babin,  19  How.  271,  15 
L.  Ed.  633,  which  was  dismissed  by 
the  Circuit  Court  on  the  ground  tliere 
was  an  adequate  remedy  at  law.  Upon 
appeal  to  this  court  the  decree  was 
affirmed,  this  court  declaring  as  a 
result  of  the  argument,  that  whenever 
a  court  of  law  is  competent  to  take 
cognizance  of  a  right  and  has  power 
to  proceed  to  a  judgment  which  af- 
fords a  plain,  adequate  and  complete 


remedy,  without  the  aid  of  a  court 
of  equity,  the  plaintiff  must  proceed 
at  law,  because  the  defendant  has  a 
constitutional  right  to  a  trial  by 
jury."  See,  also,  Parker  v.  Winne- 
piseogee  Lake,  etc.,  Co.,  2  Black,  545, 
17  L.  Ed.  333;  Grand  Chute  v.  Wine- 
gar,  15  Wall.  373,  21  L.  Ed.  170; 
Lewis  v.  Cocks,  23  Wall.  466,  23  L. 
Ed.  70;  Insurance  Co.  v.  Bailey,  13 
Wall.  616,  621,  ?0  L.  Ed.  501;  Root 
v.  Railroad  Co.,  105  U.  S.  189,  212, 
26  L.  Ed.  975. 

44.  Thus,  in  Thompson  v.  Allen 
County,  115  U.  S.  550,  6  S.  Ct.  140, 
29  L.  Ed.  472,  the  interference  of 
chancery  was  refused  because  though 
the  legal  remedy  was  inadequate  it 
was  quite  as  adaquate  as  any  remedy 
chancery   could  give. 

45.  Watson  v.  Sutherland,  5  Wall. 
74,   18  L.  Ed.  580. 


67 


§  33  Definition  and  Nature  of  Injunctions. 

invoked.46  While  it  is  true  that  the  Federal  courts  will  enforce 
any  new  rights  created  by  the  customary  or  statute  law  of  a  State, 
at  law  or  in  equity,  according  as  they  fall  within  the  remedies 
authorized  by  either  branch  of  their  jurisdiction,47  yet  such  new 
rights  will  be  enforced  in  the  Federal  courts  at  law  or  in  equity 
as  the  nature  of  those  rights  may  require,  and  a  State  cannot  bind 
the  Federal  courts  by  limiting  the  remedy  so  as  to  impair  the 
separation  established  by  the  Constitution  of  the  United  States 
between  actions  for  legal  demands  and  suits  for  equitable  relief.48 
All  actions  which  seek  to  recover  specific  property,  real  or  personal, 
with  or  without  damages  for  its  detention,  or  a  money  judgment 
for  breach  of  a  simple  contract,  or  as  damages  for  injury  to  person 
or  property,  are  legal  actions  and  can  be  brought  in  the  Federal 
courts  only  on  their  law  side ;  and  such  demands  do  not  lose  their 
character  as  cognizable  only  on  the  law  side  of  Federal  courts, 
because  in  some  State  courts  by  virtue  of  State  statutes  equitable 
relief  in  aid  of  the  demand  at  law  may  be  sought  in  the  same 
action,  for  such  blending  of  remedies  is  not  allowed  in  the  Federal 
courts.49 

§  33.  Enjoining  trespass  and  nuisance  though  legal  remedy 
exists. — Under  the  Pennsylvania  Statutes  of  1836  and  1857  it 
has  been  decided  that  injunction  is  the  appropriate  remedy  for 
such  frequently  recurring  trespasses  and  nuisances  as  threaten  to 
become  permanent,  since  the  remedy  at  law  may  be  inadequate 
because  of  the  difficulty  of  computing  the  damages  and  because 
it  may  happen  that  the  expense  of  a  recovery  will  exceed  the 
amount  recoverable  for  the  successive  trespasses  taken  separately.50 

46.  Kilbonrn  v.  Sunderland,  130  110,  11  S.  Ct.  712,  35  L.  Ed.  358; 
U.  S.  514,  9  S.  Ct.  594.  32  L.  Ed.  Thompson  v.  Railroad  Companies,  6 
1005;  Lewis  v.  Cocks,  23  Wall.  470.  Wall.  134,  137,  18  L.  Ed.  765;  Ben- 
23  L.  Ed.  70.  nett    v.    Butterworth,    11    How.    669. 

47.  Gaines  v.  Fuentes.  92  U.  S.  10.  674-  13  L-  Ed-  859?  Fen«  v-  Holme. 
23  L.  Ed.  524;  Ellis  v.  Davis,  109  U.  21  How-  481>  484>  16  L-  Ed-  198-> 
S.  485,  3  S.  Ct.  327,  27  L.  Ed.  1006.  Robinson  v.  Campbell,  3  Wheat.  212, 

4  L.  Ed.  372. 

48.  Scott  v.  Neely,  140  U.  S.  106,  5Q  By  the  thirteenth  section  of 
11   S.  Ct.  712,  35  L.  Ed.  358.                     the  Mt  of  JuQe  ^   1836)  made  gftn 

49.  Scott  v.  Neely.  140  U.  S.  106.      era!    as    to    the    courts    of    common 

68 


Definition  and  Nature  of  Injunctions 


§34 


In  Vermont,  too,  repeated  injurious  acts  rnay  be  enjoined  though 
for  each  act,  if  it  stood  alone,  the  legal  remedy  might  be  adequate.51 

§  34.  Where  a  party  has  a  remedy  by  his  own  act. — Where 
a  party  has  a  remedy  by  his  own  act  involving  the  use  of  force,  it 
does  not  constitute  that  adequate  remedy  at  law  which  excludes 
equitable  relief.  "  When  the  choice  is  between  redress  or  pre- 
vention of  injury  by  force  and  by  peaceful  process,  the  law  is  well 
pleased  if  the  individual  will  consent  to  waive  his  right  to  the  use 
of  force  and  await  its  action.  Therefore,  as  between  force  and 
the  extraordinary  writ  of  injunction,  the  rule  will  permit  the 
latter.62 


pleas  throughout  Pennsylvania  by  the 
Act  of  February  14,  1857,  it  was  en- 
acted that  the  Supreme  Court  when 
sitting  in  bank  in  Philadelphia,  and 
the  Court  of  Common  Pleas  of  the 
said  city  and  county,  shall  have  the 
power  and  jurisdiction  of  courts  of 
chancery  so  far  as  relates  inter  alia 
to  the  prevention  of  acts  contrary  to 
law  and  prejudicial  to  the  interests 
of  the  community  or  the  rights  of  in- 
dividuals. By  force  of  those  statutes 
it  was  held  in  Walters  v.  McElroy, 
151  Pa.  St.  549,  25  Atl.  125,  that  an 
injunction  would  issue  from  the  Su- 
preme Court  to  prevent  the  defend- 
ant from  making  a  drift  through 
plaintiff's  land  into  the  coal  in  ad- 
joining lands,  and  carrying  coal  over 
his  land  and  depositing  debris  and 
drainage  water  on  his  land,  such  acts 
being  continuous.  The  court  said: 
'  Under  this  section  it  has  been  re- 
peatedly and  uniformly  held  that  in- 
junction is  the  appropriate  remedy 
for  the  prevention  of  trespasses  and 
nuisances  which  by  reason  of  the  per- 
sistency with  which  they  are  repeated 
threaten  to  become  of  a  permanent 
nature.  Commonwealth  v.  Pitts- 
burgh, etc.,  R.  Co.,  24  Pa.  St.  159; 
Scheetz's    Appeal,    35    Pa.    St.    88; 


Stewart's  Appeal,  56  Pa.  St.  413; 
Masson's  Appeal,  70  Pa.  St.  26;  Alli- 
son's Appeal,  77  Pa.  St.  221;  Bit- 
ting's  Appeal,  105  Pa.  St.  517.  It  is 
the  appropriate  remedy  for  such  torts 
because  they  are  within  the  letter 
and  spirit  of  the  statute,  and  it  is  no 
objection  that  the  injured  party  may 
have  a  remedy  at  law.  In  such  cases 
the  legal  remedy  may  be  and  usually 
is  wholly  inadequate.  The  damages 
are  frequently  difficult  of  computa- 
tion, and  where  they  may  be  readily 
assessed  it  will  often  occur  that  the 
expense  of  a  recovery  will  exceed  the 
v mount  recoverable  for  any  one  of  the 
successive  trespasses.  It  was  there- 
fore a  wise  provision  that  enabled  the 
courts  to  put  an  end  by  a  single  de- 
cree to  such  controversies  as  are  pre- 
sented in  this  record  and  the  juris- 
diction ought  not  to  be  abdicated. 
From  this  it  is  not  to  be  inferred  that 
injunction  is  the  appropriate  remedy 
for  a  single  trespass,  or  for  any  num- 
ber of  trespasses  in  the  absence  of  a 
threat  that  they  will  be  repeated." 

51  Griffith  v.  Hilliard,  64  Vt.  643, 
25  A.  427. 

52  Borough  of  Stamford  v.  Stam- 
ford Horse  R.  R.  Co.,  56  Conn.  381, 
15  Atl.  749,  1  L.  R.  A.  375. 


§35 


Definition  and  Natuee  of  Injunctions. 


§  35.  Irreparable  injury  threatened ;  injunction  to  prevent. — 

It  is  a  general  rule  that,  where  a  complainant  shows  that  the  injury 
threatened  will  be  an  irreparable  one,  a  court  of  equity  will  grant 
relief  by  an  injunction.53  So  in  a  recent  case  in  the  United  States 
Supreme  Court  it  is  said :  "  It  is  one  of  the  most  valuable  features 
of  equity  jurisdiction,  to  anticipate  and  prevent  a  threatened 
injury,  where  the  damages  would  be  insufficient  or  irreparable. 
The  exercise  of  such  jurisdiction  is  for  the  benefit  of  both  parties  ; 
in  disclosing  to  the  defendant  that  he  is  proceeding  without  war- 
rant of  law,  and  in  protecting  the  complainant  from  injuries 
which,  if  inflicted,  would  be  wholly  destructive  of  his  rights."54 
So  where  an  actor  or  singer  is  of  such  ability  and  repute  that  he 
cannot  be  replaced  by  another  of  equal  repute  he  will  be  enjoined 
from  breaking  his  contract  for  the  season  and  performing  at  a 
rival  theater  on  the  ground  of  irreparable  injury.55     And  an  em- 


53  United  States. — Brown  v.  Pa- 
cific Mail  S.  S.  Co.,  Fed.  Cas.  No. 
2025. 

Alabama. — Rouse  v.  Martin,  75 
Ala.  510,  51   Am.  Rep.  463. 

Alaska. — Heine  v.  Roth,  2  Alaska, 
416. 

Connecticut. — Whittlesey  v.  Hart- 
ford P.  &  F.  R.  Co.,  23  Conn.  421. 

Georgia. — McConnell  v.  Jones 
Naval  Stores  Co.,  125  Ga.  376,  54 
S.  E.  117. 

Missouri. — State  Sav.  Bank  v. 
Kercheval,  65  Mo.  682,  27  Am.  Rep. 
310. 

Nebraska. — Cole  v.  Manners  (Neb. 
1906),  107  N.  W.  777. 

New  Jersey. — Herlin  v.  West,  4 
N.   J.   Eq.   449. 

New  York. — Campbell  v.  Seaman, 
63  N.  Y.  568,  20  Am.  Rep.  567. 

Virginia. — Diffendal  v.  Virginia 
M.  R.  Co.,  86  Va.  459,  10  S.  E.  536. 

Wisconsin. — De  Pauw  v.  Oxley,  122 
Wis.  656,  100  N.  W.  1028;  Wilson  v. 
City  of  Mineral  Point,  39  Wis.  160. 

54.  Vicksburg   Waterworks   Co.  v. 


Vicksburg,  185  U.  S.  65,  82,  22  Sup. 
Ct.  585,  46  L.  Ed.  808.  Per  Mr.  Jus. 
tice  Shiras. 

55.  Duff  v.  Russell,  14  N.  Y.  Supp. 
134;  aff'd  16  N.  Y.  Supp.  958;  aff'd 
133  N.  Y.  678,  31  N.  E.  622.  See,  also, 
Daly  v.Smith,  38  N.  Y.  Super.  158; 
Lumley  v.  Wagner,  1  DeG.  M.  &  G. 
604;  Montague  v.  Flockton,  L.  R.  16 
Eq.  189.  The  true  ground  of  injunctive 
relief  is  thus  expressed  in  Beach, 
Modern  Eq.  Jur.  §  605 :  "  Where  a 
contract  stipulates  for  special,  unique 
or  extraordinary  services  or  acts,  or 
where  the  services  to  be  rendered  are 
purely  intellectual,  or  are  peculiar 
and  individual  in  their  character,  the 
court  will  grant  an  injunction  in  aid 
of  a  specific  performance;  .  .  .  the 
reason  being  that  the  services  are  of 
such  a  nature  as  to  preclude  the 
possibility  of  giving  the  injured  party 
adequate  compensation  in  damages. 
Cort  v.  Lassard,  18  Or.  221;  6  L.  R. 
A.  653;  Rogers  Mfg.  Co.  v.  Rogers. 
58  Conn.  356;  7  L.  R.  A.  779;  Daly 
v.   Smith,  49   How.   Pr.    150. 


70 


Definition  and  Natube  of  Injunctions. 


§36 


ployee  may  be  enjoined  from  divulging  or  using  for  his  own 
benefit  trade  secrets  relating  to  his  employer's  business,  which  the 
opportunities  of  his  service  have  enabled  him  to  obtain.56  And  an 
injunction  has  been  held  proper  to  prevent  the  destruction  of  trees 
which  were  ornamental  to  plaintiff's  grounds  and  which  sheltered 
his  dwelling  house  from  storms  and  shaded  it  from  the  sun.57 
Again,  a  court  of  equity  in  the  exercise  of  its  discretion  may  grant 
an  injunction  to  prevent  a  breach  or  an  injury  for  which  there  can 
be  no  other  redress  on  account  of  the  defendant's  insolvency.58 

§36.  Irreparable  injury;  what  is. — While  irreparable  injury 
cannot  be  precisely  defined  by  a  general  definition,  it  is  obvious 
that  there  are  many  injuries  to  person  and  property  for  which 
there  can  be  no  adequate  pecuniary  compensation.59  An  irrepar- 
able injury  may  arise  either  from  the  nature  of  the  injury  itself 
or  from  the  want  of  responsibility  in  the  person  committing  it.80 


56.  Merryweather  v.  Moore 
(1892),  2  Ch.  518. 

57.  Shipley  v.  Ritter,  7  Md.  408, 
where  the  court  said  that  though  an 
injunction  will  not  be  granted  to  re- 
strain a  trespasser  merely  as  such, 
yet  equity  will  interfere  where  the 
injury  is  irreparable,  or  where  full 
and  adequate  relief  cannot  be  granted 
at  law,  or  where  the  trespass  goes  to 
the  destruction  of  the  property  as  it 
had  been  held  and  enjoyed,  or  where 
it  is  necessary  to  prevent  a  multiplic- 
ity of  suits. 

58.  Saltus  v.  Belford  Company, 
133  ^.  Y.  499,  504,  31  N.  E.  518. 

50.  As  it  was  said  in  Crescent 
City,  etc.,  Co.  v.  Police  Jury,  32  La. 
Ann.  1192,  where,  however,  it  ap- 
peared from  plaintiff's  own  showing 
that  he  would  not  be  irreparably  in- 
jured, because  he  estimated  his  dam- 
age at  $1,500  and  upwards.  "  There 
are  many  injuries  which,  in  the  very 
nature  of  things,  cannot  be  repaired 
by  any  money  consideration.      Such, 


for  instance,  as  result  from  acts 
which  outrage  the  feelingg  and  wound 
the  sensibilities,  or  deprive  us  of  ob- 
jects of  affection  and  of  things,  per- 
haps trivial  in  themselves,  but  of 
inestimable  value,  by  reason  solely  of 
being  associated  with  some  precious 
memory  or  touching  incident  of 
our  lives.  Or  it  may  be  that 
the  maintenance  of  the  writ  is 
required  to  preserve  to  us  our 
homes,  and  to  establish  us  in 
a  state  or  condition  which,  lost  for 
the  moment,  can  never  be  recovered, 
nor  the  loss  atoned  for  by  money. 
In  all  this  class  of  cases  the  injunc- 
tion should  be  maintained,  because 
the  injury  from  its  dissolution  would 
be  irreparable  .  .  .  We  have  exam- 
ined the  pleadings  carefully  and  we 
cannot  discover  that  the  plaintiff 
could  possibly  suffer  such  loss  by 
the  threatened  act  as  money  could 
not  replace." 

60.  Kerlin   v.    West,   4   N.   J.   Eq. 
449,    453. 


71 


§37 


Definition    ami    Nati  re  of  Injunctions. 


And  an  injury  is  irreparable  when  it  is  of  such  a  nature  that  the 
injured  party  cannot  be  adequately  compensated  therefor  in  dam- 
ages, or  when  the  damages  which  may  result  therefrom  cannot 
be  measured  by  any  certain  pecuniary  standard.60*  The  term 
"  irreparable  injury  "  does  not  mean  that  the  injury  might  be  one 
which  can  not  be  repaired  by  any  physical  possibility  but  is  con- 
strued as  meaning  that  the  injury  must  be  at  least  a  material,  if 
not  a  grievous  one,  which  is  not  adequately  reparable  in  damages.61 

§  37.  Rules  illustrated  generally. — Where  the  injury  com- 
plained of  is  such  as  to  destroy  plaintiff's  property,  or  render  it 
entirely  worthless,  for  his  purposes,  it  may  properly  be  regarded 
as  irreparable.62  And  where  the  substance  of  plaintiff's  estate  or 
inheritance  is  taken  in  part,  for  example  by  the  construction  of  a 
tunnel  through  his  land,  the  injury  is  deemed  irreparable  without 
regard  to  defendant's  solvency.83     So  a  gas  company  which  has 


60a.  Wilson  v.  City  of  Mineral 
Point,  39  Wis.  160,  164.  See,  also, 
Heine  v.  Roth,  2  Alaska,  416;  Devon 
v.  Pence  (Ky.  1908),  106  S.  W.  874; 
Cole  v.  Manners  (Neb.  1906),  107  N. 
W.  777. 

61.  Masonic  Temple  Ass'n  v. 
Banks,  94  Va.  695,  27  S.  E.  490.  See, 
also,  Insurance  Co.  of  North  America 
v.  Bonner,  7  Colo.  App.  97,  42  Pac. 
681. 

62.  Ward  v.  Ohio  River  R.  Co., 
35  W.  Va.  481,  14  S.  E.  142,  where 
plaintiff  alleged  "  that  no  one  would 
come  to  his  said  livery  stable  for  the 
purpose  of  hiring  horses  and  teams 
when  they  would  have  to  drive  out 
of  said  stable  immediately  upon  or 
alongside  of  said  railroad  track  along 
which  a  locomotive  might  be  coming 
at  any  time,  and  in  fact  frequently 
would  be  there,  endangering  life  and 
property,  all  of  which  would  irrepar- 
ably damage  your  orator's  property." 

63.  Richards  v.  Dower,  64  Cal.  62, 


adopting  the  opinion  of  Lord  Eldon 
in  Thomas  v.  Oakley,  18  Ves.  184. 
In  More  v.  Massini,  32  Cal.  594,  it 
was  said :  "  Should  the  threat  be  ful- 
filled the  plaintiff  would  be  deprived 
of  a  part  of  the  substance  of  his 
inheritance  which  could  not  be  speci- 
fically replaced.  In  the  class  to 
which  this  case  belongs  no  allegation 
of  insolvency  is  necessary.  The  in- 
jury is  irreparable  in  itself."  See 
also  People  v.  Morrill,  26  Cal.  360; 
Leach  v.  Day,  27  Cal.  646;  Hicks  v. 
Michael,  15  Cal.  116;  Merced  Mining 
Co.  v.  Fremont,  7  Cal.  322. 

The  obstruction  of  a  water 
course  so  as  to  flood  plaintiff's  land 
and  carry  off  his  soil  is  an  irrepar- 
able injury  which  is  a  ground  for  in- 
junction. Ferris  v.  Wellborn,  64 
Miss.  29.  See,  also,  Ambrose  v.  Buf- 
falo, 20  N.  Y.  Supp.  129.  Compare 
Manigault  v.  Springs,  123  Fed.  707, 
affd  199  U.  S.  473,  26  Sup.  Ct.  127, 
50  L.  Ed.  274. 


72 


Definition  and  Nature  of  Injunctions. 


§38 


contracted  to  furnish  the  owner  of  a  dwelling  with  gas  free  of 
charge  for  twenty  years,  and  which  has  a  monopoly,  can  be  en- 
joined by  him  from  wholly  cutting  off  the  supply,  as  the  damage 
would  be  irreparable.64  And  where  repeated  injurious  acts  are 
done  or  threatened  the  entire  wrong  may  be  prevented  by  injunc- 
tion, though  each  of  such  acts  taken  by  itself  may  not  be  destructive 
to  the  estate  and  therefore  not  irreparable,  and  the  legal  remedy 
may  be  adequate  for  each  single  act,  if  it  stood  alone.65  Equity 
also  has  jurisdiction  to  protect  a  vested  franchise  from  an  unlaw- 
ful invasion  or  disturbance,  upon  the  ground  of  irreparable  injury 
or  such  injury  as  cannot  be  adequately  estimated  in  damages  at 
law.6*5 


§38.  Same  subject;  public  taking  of  private  property. — An 
injunction  will  be  granted  to  prevent  an  essentially  irremediable 


Injury  to  a  forest  by  cutting 
and  carrying  away  growing  timber 
is  irreparable.  King  v.  Stuart,  84 
Fed.  546. 

64.  Graves  v.  Key  City  Gas  Co., 
83  Iowa,  714,  50  N.  W.  283,  where 
the  court  said:  "  If  defendant  may 
withhold  the  supply  of  gas,  plaintiff 
can  obtain  it  from  no  other  existing 
source,  for  defendant  it  appears  has 
at  present  a  monopoly  to  furnish  gas 
to  private  consumers  such  as  plain- 
tiff. His  gas  pipes  and  burners  and 
fixtures  would  become  valueless  and 
he  would  be  deprived  of  gas  light 
which  to  a  certain  extent  is  regarded 
by  housekeepers  using  it  as  a  neces- 
sity. As  plaintiff  can  supply  his 
dwelling,  outhouses  and  street  lamps 
in  no  other  way  thus  injury  cannot 
be  repaired.  .  .  It  is  true  he  could 
use  candles,  oils,  electricity,  but  he 
contracted  for  gas  light  and  is  enti- 
tled to  it.  It  will  not  do  to  say  he 
may  have  compensation  in  damages. 
It  would  be  difficult  if  not  impossible 
to  estimate  his  damage.    If  it  might 


be  done,  there  would  be  delay  in  com- 
pensation, subjecting  plaintiff  to  dis- 
comfort and  inconvenience  and  loss 
for  probably  a  protracted  period." 

Compare  Loy  v.  Madison  &  Han- 
cock Gas  Co..  156  Ind.  332,  58  N.  E. 
844. 

65.  Griffith  v.  Hilliard,  64  Vt.  643, 
25  Atl.  427,  where  plaintiff  expended 
large  sums  in  fitting  up  kilns,  mills 
and  appliances  to  manufacture  char- 
coal and  lumber  on  certain  wood  land 
which  he  owned,  and  had  contracted 
for  the  sale  of  the  products,  and  de- 
fendant, who  was  cutting  and  draw- 
ing timber  from  the  land  and  threat- 
ened to  continue  doing  so,  was  en- 
joined. See,  also,  Smith  v.  Rock,  59 
Vt.  232,  9  Atl.  551;  Langdon  v. 
Templeton,  61  Vt.  119,  19  Atl.  839; 
Murphy  v.  Lincoln,  63  Vt.  278,  22 
Atl.  418;  Erhardt  v.  Boaro,  113  U. 
S.  539,  5  S.  Ct.  565,  28  L.  Ed.  1113; 
Iron  Co.  v.  Reymert,  45  N.  Y.  703; 
Power  Co.  v.  Tibbetts,  31  Conn.  165. 

66.  Bessemer  v.  Bessemer  Water- 
works (Ala.  1907),  4*  So.  663. 


73 


§38 


Definition  and  Nature  of  Injunctions. 


injury,  where  the  appropriation  of  private  property  to  public  use, 
under  color  of  law,  but  in  fact  without  authority,  is  threatened  j68 
and  a  defendant  will  be  restrained  from  exercising  an  ultimate 
right  until  he  does  the  act  which  has  been  made  a  condition 
precedent  to  such  right,  the  injunction  then  to  be  vacated.69  Thus 
a  railroad  company  may  be  enjoined  from  using  a  person's  prop- 
erty without  paying  for  it,  but  where  the  injunction  by  stopping 
the  running  of  the  road  would  put  the  public  to  great  incon- 
venience, and  the  party  to  be  enjoined  can,  by  agreement  or  con- 
demnation, obtain  the  right  to  continue  the  use  of  the  property 
for  railroad  purposes,  a  reasonable  time  within  which  to  obtain 
such  right  will  be  given  before  issuing  the  injunction70  But 
where  there  is  no  direct  taking  of  private  property,  but  only 
an  incidental  injury  to  it,  which  can  be  fully  and  easily  com- 
pensated in  damages  recoverable  at  law,  an  injunction  should  not 
be  granted;71  particularly  where  the  public  would  suffer  great 
inconvenience  from  the  injunction.72 


68.  Osborne  v.  Missouri  Pac.  R. 
Co.,  147  U.  S.  248,  37  L.  Ed.  155,  13 
S.  Ct.  299,  302,  where  Fuller,  C.  J., 
said :  "  Equitable  jurisdiction  may  be 
invoked,  in  view  of  the  inadequacy 
of  the  legal  remedy,  where  the  injury 
is  destructive  or  of  a  continuous 
character,  or  irreparable  in  its  na- 
ture; and  the  appropriation  of  pri- 
vate property  to  public  use,  under 
color  of  law,  but  in  fact  without 
authority,  is  such  an  invasion  of  pri- 
vate rights  as  may  be  assumed  to  be 
essentially  irremediable,  if,  indeed, 
relief  may  not  be  awarded  ex  debito 
justitiae.  But  where  there  is  no 
direct  taking  of  the  estate  itself,  in 
whole  or  in  part,  and  the  injury  com- 
plained of  is  the  infliction  of  damage 
in  respect  to  the  complete  enjoyment 
thereof,  a  court  of  equity  must  be 
satisfied  that  the  threatened  damage 
is  substantial,  and  the  remedy  at 
law    in    fact    inadequate,    before    re- 


straint will  be  laid  upon  the  progress 
of  a  public  work;  and  if  the  case 
made  aiscloses  only  a  legal  right  to 
recover  damages,  rather  than  to  de- 
mand compensation,  the  court  will 
decline  to  interfere." 

69.  McElroy  v.  Kansas  City,  21 
Fed.  257. 

70.  Glover  v.  Manhattan  R.  Co.,  51 
N.  Y.  Super.  1,  17;  Henderson  v.  N. 
Y.  Central  R.  Co.,  78  N.  Y.  423; 
Story  Case,  90  N.  Y.  122. 

71.  Osborne  v.  Missouri  Pac.  R. 
Co.,  147  U.  S.  248,  37  L.  Ed.  155,  13 
S.  Ct.  299,  303,  where  an  abutting 
owner  was  held  not  entitled  to  an 
injunction  to  prevent  the  legitimate 
use  of  a  street  by  a  railroad,  but 
must  seek  his  remedy  in  damages. 
See,  also,  Gauss  Mf'g  Co.  v.  St.  Louis, 
etc.,  R.  Co.,  113  Mo.  308,  20  S.  W. 
658;  Julia  Bldg.  Ass'n  v.  Bell  Tel. 
Co.,  88  Mo.  258. 

72.  In  McElroy  v.  Kansas  City,  21 


74 


Definition  and  Nature  of  Injunctions. 


§39 


§  39.  Threatened  injury   must   be  irreparable The  general 

rule  is  that  an  injunction  will  be  granted  only  where  an  irrepar- 
able injury  is  threatened  and  for  which  the  law  does  not  furnish 
an  adequate  remedy.73     And  a  bill  seeking  an  injunction  on  the 


Fed.   257,   which  was   an  application 
for    an    injunction    to    restrain    the 
grading  of  a   street  in  front  of  the 
complainant's    lot,    Brewer,    J.,    then 
circuit  judge,  considered  under  what 
circumstances      a     chancellor     could 
grant  such  relief.     It  was  ruled  that 
if  the  injury  which  the  complainant 
would    sustain   from   the    act  sought 
to    be    enjoined    could    be    fully    and 
easily  compensated  at  law,  while,  on 
the  other  hand,  the  defendant  would 
suffer   great   damage,    and   especially 
if   the  public  would  suffer  large  in- 
convenience  if   the   contemplated   act 
were  restrained,  the  injunction  should 
be  refused,  and   the  complainant  re- 
mitted to  his  action  for  damages.    If 
the  defendant  had  an  ultimate  right 
to  do  the  act  sought  to  be  restrained, 
but  only  on  some  condition  precedent, 
and    compliance    with    the    condition 
was  within  the  power  of  the  defend- 
ant, the  injunction  would  almost  uni- 
versally  be  granted   until   the  condi- 
tion  was   complied   with;    but   if   the 
means  oi  complying  with  the  condi- 
tion   were    not    at    defendant's    com- 
mand,  then   the   court  would   adjust 
its  order  so  as  to  give  complainant 
the   substantial  benefit  of  the  condi- 
tion, while  not  restraining  defendant 
from    the    exercise    of    its    ultimate 
rights.     Inasmuch  as  while  the  stat- 
utes of  Missouri  provided  for  the  as- 
sessment of   damages   resulting  from 
the  taking  of  property  for  public  use, 
there  existed   no   provision   to   attain 
that   result  where   the   property   was 
merely    damaged,   an   injunction   was 
granted,   with  leave  to  defendant  to 


apply  for  the  appointment  of  com- 
missioners to  ascertain  and  report  the 
damages  which  complainant  would 
sustain,  upon  payment  of  which  the 
injunction  would  be  vacated. 

73.  United  States.— New  York 
Grape-Sugar  Co.  v.  American  Grape- 
Sugar  Co.,  10  Fed.  835. 

California. — Bishop  v.  Owens  (Cal. 
App.  1907),  89  Pac.  844;  Ritter  v. 
Patch,  12  Cal.  298;  Middleton  v. 
Franklin,  3  Cal.  238. 

Colorado. — Fulton  Irrig.  Ditch  Co. 
v.  Twombly,  6  Colo.  App.  554,  42 
Pac.  253. 

Connecticut. — Hine  v.  Stephens,  33 
Conn.  497,  89  Am.  Dec.  217. 

District  of  Columbia. — Johnson  v. 
Baltimore  &  Potomac  R.  Co.,  4  App. 
D.  C.  491. 

Florida. — Indian  River  Steamboat 
Co.  v.  East  Coast  Trans.  Co.,  28  Fla. 
387,  10  So.  480. 

Georgia. — Ocmulgee  Lumber  Co.  v. 
Mitchell,  112  Ga.  528,  37  S.  E.  749; 
Empire  Loan  &  Bldg.  Ass'n  v.  At- 
lanta, 77  Ga.  496. 

Illinois. — Carlson  v.  Koerner,  226 
111.  15,  80  N.  E.  562;  Ft.  Clarke 
Horse  Ry.  Co.  v.  Anderson,  108  111. 
64,  48  Am.  Rep.  545;  Holm  V.  Wind- 
sor Village,  38  111.  App.  650. 

Indiana. — Bolster  v.  Catterlin,  10 
Ind.  117;  compare  Brugh  v.  Denman 
(Ind.  App.  1906),  78  N.  E.  349. 

Maryland. — Cockey  v.  Carroll,  4 
Md.  Ch.  344. 

Maine. — Augusta  Steam  Laundry 
Co.  v.  Debow,  98  Me.  496,  57  Atl. 
845. 


75 


§39 


Definition  and  Nature  ok    I  n.h  notions. 


ground  of  irreparable  injury  must  allege  facts  to  enable  the  court 
to  determine  whether  the  injury  will  be  irreparable  as  alleged. 
A  mere  general  allegation  that  the  injury  will  be  irreparable  will 
not  suffice.74     This  rule  is  sustained  by  numerous  decisions.75     In 


Massachusetts. — Walker  v.  Brooks, 
125   Mass.   241. 

Minnesota. — Hart  v.  Marshall,  4 
Minn.  294. 

Nebraska. — Normand  v.  Otoe 
County,  8  Neb.   18. 

New  Jersey. — Central  R.  Co.  v. 
Standard  Oil  Co.,  33  N.  J.  Eq.  127; 
Lewis  v.  Elizabeth,  25  N.  J.  Eq.  298. 

New  York. — Troy,  etc.,  R.  Co.  v. 
Boston,  etc.,  R.  Co.,  86  N.  Y.  107, 
126;  Goldman  v.  Corn,  111  App.  Div. 
674,  97  N.  Y.  Supp.  926; 
Robinson  v.  Guaranty  Trust  Co., 
51  App.  Div.  134,  64  N.  Y.  Supp. 
525;  Roosevelt  v.  Godard,  52  Barb. 
533,  544;  Johnson  v.  Kingston  Board 
of  Education,  3j8  Misc.  R.  593,  78  N. 
Y.  Supp.  53;  Sixth  Ave.  Ry.  Co.  v. 
Gilbert  Elev.  Ry.  Co.,  43  N.  Y.  Super. 
292. 

North  Carolina. — East  Lake  Lum- 
ber Co.  v.  East  Coast  Cedar  Co.,  142 
N.  C.  412,  55  S.  E.  304. 

Ohio. — Stewart  v.  Little  Miami  R. 
Co.,  14  Ohio,  353;  Commercial  Bank 
v.  Bowman,  1   Handy,  246. 

Oregon. — Portland  v.  Baker,  8 
Oreg.  356. 

Pennsylvania. — Hicks  v.  American 
Natural  Gas  Co.,  207  Pa.  St.  570,  57 
Atl.  55;  Haskell  v.  Gross,  7  Phila. 
317. 

Wisconsin. — Jacobs  v.  Lakeside 
Lumber  Co.  (Wis.  1908),  114  IN.  W. 
443. 

See  Gillam  v.  Arnold,  32  S.  C. 
503,  11  S.  E.  331,  where  the  court 
said :  "  Plaintiff's  allegations  simply 
are  that  defendants  are  about  to  sell 
her   real   estate   under   a   void   judg- 


ment and  this  unquestionably  affords 
no  ground  for  the  interference  of  the 
equitable  remedy  by  injunction,  for 
even  if  such  sale  should  be  made  it 
certainly  would  not  work  any  irre- 
parable mischief  to  plaintiff,  and  in 
fact  would  not  injure  her  in  any 
way,  for  it  would  amount  to  nothing 
more  than  a  sale  without  any  au- 
thority  whatever." 

See  the  rule  applied  to  the 
maintenance  of  a  sign  by  lessee. 
Stirn  v.  Nash,  19  Civ.  Pro.  (N.  Y.) 
184. 

74.  Town  of  Orange  City  v. 
Thayer,  45  Fla.  502,  34  So.  573; 
citing  Indian  River  Steamboat  Co.  v. 
East  Coast  Trans.  Co.,  28  Fla.  387, 
10  So.  480,  wherein  it  is  said  that 
"  it  will  not  do  to  simply  allege  that 
the  complainant  has  no  adequate 
remedy  at  law,  and  that  his  dam- 
ages will  be  irreparable.  The  court 
will  not  act  upon  his  opinion  or  his 
fears  in  such  matters  but  he  must 
state  facts  in  his  bill  to  enable  the 
court  to  determine  whether  or  not 
his  alleged  injury  will  be  irrepar- 
able."    Per  Mabry,  J. 

75.  United  States. — Zinsser  v. 
Cooledge,   17   Fed.  538. 

California. — »3ee  Mechanics  Foun- 
dry v.  Ryall,  75  Cal.  601;  Merced 
Falls  G.  &  E.  Co.  v.  Turner  (Cal. 
App.  1906),  84  Pac.  239. 

District  of  Columbia. — Purcell  En- 
velope Co.  v.  Smith,  26  Wash.  L. 
Rep.   515. 

Florida. — Metcalf  Co.  v.  Martin 
(Fla.  1907),  45  So.  463;  Town  of 
Orange  City  v.  Thayer,  45  Fla.  502, 


76 


Definition   and   Nature  of  Injunctions.  §  39a 

determining  whether  irreparable  injury  will  result  irom  the  acts 
of  defendant  where  it  is  alleged  and  denied  by  the  parties,  the 
court  may  resort  to  the  knowledge  which  it  has  in  common  with 
others.76 


§  39a.  Same  subject;  application  of  rule. — In  an  early  and 
leading  case  Chancellor  Kent  decided  that  an  injunction  should 
not  be  granted  to  restrain  a  mere  trespass  where  the  injury  is  not 
destructive  to  the  plaintiff's  estate,  but  is  susceptible  of  perfect 
pecuniary  compensation.77  And  where  a  director  sued  to  restrain 
the  board  of  directors  from  holding  a  meeting  alleged  to  be  irregu- 
lar, in  that  they  intended  to  transact  business  without  a  quorum, 


34  So.  573;  Indian  River  Steamboat 
Co.  v.  East  Coast  Transp.  Co.,  28 
Fla.  387,  10  So.  480. 

Georgia. — Burma  v.  Columbus,  105 
Ga.  42,  31  S.  E.  124.  See  Jones  v. 
Macon,  etc.,  R.  Co.,  39  Ga.  138;  Bat- 
tle v.  Stephens,  32  Ga.  25. 

Maryland. — Consolidated  Gas  &  E. 
L.  &  P.  Co.  v.  Northern  Cent.  R.  Co. 
(Md.  1908),  69  Atl.  518;  Carswell 
v.  Swindell   (Md.  1906),  62  Atl.  956. 

Missouri. — State  v.  Wood,  155  Mo. 
425    56  S.  W.  474,  48  L.  R.  A.  596. 

Xebraska. — State  Bank  v.  Rohren, 
55  Neb.  223,  75  N.  W.  543. 

Nt  ic  Jersey. — Hagerty  v.  Lee,  45 
N.  J.  Eq.  255,  17  Atl.  826. 

2Vetc  York. — McHenry  v.  Jewett, 
90  N.  Y.  58,  62;  Ehrich  v.  Grant, 
111  App.  Div.  196,  97  N.  Y.  Supp. 
600;  Brown  v.  Metropolitan  Gaslight 
Co,  38  How.  Prac.  133;  Corning  v. 
Troy  Iron  Foundry,  6  How.  Prac.  89. 

Xorth  Carolina. — See  Moore  v.  Sil- 
ver Valley  Min.  Co.,  104  N.  C.  534, 
10  S.  E.  679;  Lewis  v.  Roper  Lum- 
ber Co.,  99  N.  C.  11,  15,  5  S.  E.  19; 
Hettrick  v.  Page,  82  N.  C.  65. 

Pennsylvania. —  Philadelphia  v. 

Crump,   1    Brewst.  320. 

West    Virginia. — Pence    v.    Carney 


(W.  Va.  1905),  52  S.  E.  702;  Wat- 
son v.  Farrell,  34  W.  Va.  406,  12 
S.   E.   724. 

76.  Consolidated  Electric  L.  Co.  v. 
People's  Electric  L.  &  G.  Co.,  94  Ala. 
372,  10  So.  440.  As  was  said  by 
the  court  in  Crescent  City,  etc.,  Co. 
v.  Police  Jury,  32  La.  Ann.  1192: 
"  If  a  petitioner  swear  that  he  ap- 
prehends that  the  defendant  will 
make  a  square  circle,  and  that  by 
the  making  thereof  he  will  sustain 
an  irreparable  injury  and  apply  for 
an  injunction,  the  court  notwith- 
standing verification  by  oath  of  the 
allegation  in  the  petition  would  be 
justified   in   refusing  the   remedy." 

77.  Jerome  v.  Ross,  7  Johns.  Ch. 
(N.  Y.)  315,  331,  where  it  was  said: 
"  The  plaintiff  speaks  of  the  injury 
as  irreparable,  because  the  loads  of 
stone  taken  from  the  mass  of  rock 
cannot  be  replaced  or  restored;  but 
as  he  does  not  state  that  the  rock 
was  of  any  use  to  him  as  proper  or 
fit  for  building,  etc.,  or  that  it  was 
even  desirable  as  an  object  of  orna- 
ment or  taste,  there  was  no  need  of 
having  the  same  identical  fragments 
of  stone  replaced,  and  the  injury 
was    not    in    the    sense    of    the    law 


77 


§  39a         Definition  and  Nature  of  Injunctions. 

the  injunction  was  denied  because  the  only  irreparable  injury 
that  could  result  to  him  would  bo  the  discontinuance  of  a  suit 
irregularly  brought  by  the  company  against  some  of  the  directors.71 
So  the  removal  of  trees  which  will  not  destroy  or  materially  alter 
the  character  of  premises,  but  will  only  increase  the  cost  of  fuel, 
is  not  an  irreparable  injury,  where  the  trespasser  is  able  to  respond 
in  damages.79  And  where  a  gas  company,  which  was  under  a 
contract  with  plaintiffs  to  furnish  each  of  them  gas  for  dwelling 
purposes  so  long  as  a  sufficient  amount  of  gas  would  flow  from  the 
company's  well,  cut  off  the  gas,  claiming  that  the  flow  was  no 
longer  sufficient  to  supply  the  plaintiffs,  it  was  decided  that  they 
were  not  entitled  to  an  injunction  restraining  the  company  from 
cutting  off  the  gas  in  the  absence  of  a  showing  that  plaintiffs  had 
no  other  means  of  heating  or  lighting  their  dwellings.80  Again, 
the  removal  from  demised  premises  of  articles  which  are  not 
fixtures  but  personal  chattels,  which  can  be  removed  without  injury 
to  the  buildings,  and  whose  exact  money  value  can  be  readily 
determined,  is  not  an  irreparable  injury  to  the  freehold.81  And 
a  collector  for  one  merchant  cannot  ordinarilv  be  restrained  from 


irreparable.     It  was  susceptible  of  a  parable    injury.      In    the    latter   case 

perfect   pecuniary   compensation."  the    court    held    that    an    injunction 

See    upon    this     point    chapt.     39  should  not  be  granted  to  restrain  the 

herein.  pumping  of  water  from  a  fresh  water 

78.  Sullivan  v.  Venner  63  Hun,  lake  when  it  is  not  shown  that  the 
634;  18  N.  Y.  Supp.  398,  where  Van  owners  of  abutting  property  will  suf- 
Brunt,  J.,  speaks  of  the  evils  antici-  fer  actual  and  material  injury,  but 
pated  by  plaintiff  as  "  imaginary,  in-  that  the  fear  of  threatened  injury 
definite  and  undetermined."  is  based  on  theoretical  grounds,  hav- 

79.  Heaney  v.  BUtte,  etc.,  Com-  ing  little  or  no  foundation  in  actual 
mercial  Co.,  10  Mon.  590,  27  Pac.  practical  experiment.  Also,  Winter 
379,  where  the  trees  were  on  a  min-  v.  Montgomery,  93  Ala.  539,  9  So. 
ing  claim  and  were  necessary  for  366;  East,  etc.,  R.  Co.  v.  East  Ten- 
fuel,  and  the  removal  was  held  not  a  nessee  R.  Co.,  75  Ala.  275. 

ground  for  injunction  within  the  rule  80.  Loy  v.  Madison  &  Hancock  Gas 

laid  down  by  "Kent  in  Jerome  v.  Ross,  Co.,  156  Ind.  332,  58  N.  E.  844. 

6  Johns.  Ch.  315.     See,  also,   Smith  81.  Loeser  v.  Liebmann,   14  N.  Y. 

v.  King,  61  Conn.  511,  23  Atl.  923;  Supp.    569,    aff'd    137    N.    Y.     163; 

Wintermute   v.   Tacoma,    etc.,    Water  Thompson  v.  Matthews,   2  Edw.   Ch. 

Co.,    3    Wash.     727.    29    Pac.    444,  212;   Balcom  v.  Julien,  22  How.  Pr. 

where  there  was  no  evidence  of  irre-  349. 

78 


Definition  and  Nature  of  Injunctions. 


§39b 


accepting  a  similar  position  with  another  merchant,  though  bound 
by  contract  not  to  do  so,  for  the  damage  is  not  irreparable,  except 
in  very  special  circumstances.82 

§  39b.  Same  subject ;  abating  liquor  nuisance. — A  preliminary 
injunction  will  not  be  granted  by  a  Federal  court  to  prevent  a 
State  court  from  enforcing  its  decree  restraining  plaintiff  from 
selling  wine  and  beer,  and  abating  his  saloon  as  a  nuisance,  under 
the  State  law,  after  the  case  has  been  removed  to  the  Federal  court ; 
as  in  such  a  case  the  injury  to  plaintiff  would  not  be  irreparable, 
but  capable  of  being  fully  compensated  by  damages  at  law,  in  the 
event  of  the  removed  case  being  decided  in  his  favor.83  In  dis- 
tinction from  the  saloon  cases,  just  adverted  to,  are  the  brewery 
cases,  in  which  there  are  grounds  for  injunctive  relief,  in  order 
to  prevent  irreparable  injury.84 


82.  Sternberg  v.  O'Brien,  48  N.  J. 
Eq.  370,  22  Atl.  348,  where  the  court 
was  satisfied  the  defendant  was  not 
in  a  position  to  draw  away  plaintiff's 
customers. 

83.  Wagner  v.  Drake,  31  Fed. 
849,  in  which,  as  one  of  the  so-called 
Saloon  Cases,  Love,  J.,  said :  "  The 
damages  in  such  cases  are  not  large; 
barely  sufficient,  indeed,  in  amount 
to  bring  them  into  this  court.  The 
buildings  in  which  the  saloon  business 
is  carried  on  are  not  like  a  great 
brewery  which,  with  its  machinery 
and  appliances,  cannot  be  converted 
to  any  other  use  than  that  for  which 
they  were  intended.  The  chief  loss 
of  the  salcon  owner,  if  his  business 
be  closed  by  the  action  of  the  State 
court,  is  the  value  of  the  fixtures 
and  the  furniture  used  in  his  trade. 
These  may  be  fully  compensated  in 
damages  in  actions  at  law,  and  it  is 
perfectly  clear,  in  point  of  law,  that 
if  these  saloon  cases  have  been  leg- 
ally transferred  to  this  court,  and  if 


the  Supreme  Court  of  che  United 
States  shall  so  decide,  then  every  in- 
dividual who,  subsequent  to  the  re- 
moval, proceeds  against  them  in  the 
State  court,  makes  himself  a  tres- 
passer; and  that  as  such  he  may  be 
made  liable  for  all  damages  that  may 
accrue  to  the  saloon  owner." 

84.  Wagner  v.  Drake,  31  Fed.  849, 
853,  where  Love,  J.,  said:  "  I  do  not 
doubt  that  in  those  removal  cases, 
where  rights  of  property  are  the  di- 
rect subject  of  litigation,  if  any 
party  were  proceeding  under  the  au- 
thority of  the  State  court,  after  the 
removal,  to  sell,  destroy,  confiscate, 
or  otherwise  meddle  with  the  prop- 
erty, so  as  to  seriously  impair  its 
value,  it  would  be  the  duty  of  the 
federal  court  to  prevent  such  injur- 
ious acts;  for  otherwise  the  final  de- 
cree of  the  court,  establishing  the 
right  of  any  claimant  to  the  prop- 
erty, would  be  useless  and  nugatory. 
The  injury  in  such  case  would  be 
irreparable.       Such     was     the     view 


79 


§40 


Definition   a.m.   .Vwiki    of   I.\.n.\( iTioars. 


§  40.  Same  subject ;  exceptions. — There  are  in  modern  times 
some  cases  where  the  relief  by  injunction  is  not  based  upon  irre- 
parable injury  and  the  defendant'9  insolvency.85  So  to  entitle  a 
party  to  a  temporary  injunction  under  the  Iowa  Code  it  is  not 


which  this  court  took  of  the  Brewery 
cases,    When/    they    were    transferred 
from   the   State  courts,  upon  the  au- 
thority   of    the    decision    in    State    v. 
Walruff,  26  Fed.  Rep.  178.     In  these 
Brewery     cases     the     properties     in- 
volved were  of  very  great  value.    No 
bond    of    indemnity    was    required    of 
parties  who  sued   out   injunctions   in 
the     State    courts,    aiming   at     their 
abatement  and  destruction  as  virtual 
nuisances.      The   consequences   to    the 
owners  of  such  properties  would  have 
been  simply   ruinous,  and   the   injury 
irreparable.     These   were  clear  cases, 
therefore,    calling    for    the    equitable 
discretion  of   this   court   in  granting 
preliminary   injunctions.      Unless   the 
court  wholly   abandoned   its  jurisdic- 
tion of  causes  thus  removed  here,  and 
remanded   them   to   the   State  courts, 
there  seemed  to  be  an  imperative  ne- 
cessity   for    the    granting    of    orders 
staying     proceedings     in     the     State 
courts,    which    threatened    the    utter 
destruction  of  tiie   brewery  property, 
the  very  subject  of  litigation.     It  was 
manifest  that  actions  at  law  for  dam- 
ages by  the  owners  of  brewery  prop- 
erties injured  to  the  extent  of  sums 
amounting    to    twenty,    thirty,    forty 
and  fifty  thousand  dollars  would  have 
proved    wholly    futile,    and    therefore 
that    the    impending   injury    was    in- 
evitable." 

85.  Bolton  v.  McShane,  67  Iowa, 
207,  25  N.  W.  135,  where  the  court 
says:  "There  are  numerous  cases  in 
this  court  wherein  equity  has  inter- 
fered by  injunction  to  restrain  road 
supervisors   and   others   from   remov- 


ing or  interfering  with  fences,  etc.,  in 
the   discharge  of   their   official    duty. 
Relief   in   these   cases   was  not   based 
upon     grounds     of      the    irreparable 
character  of  the  injury.    .     .     .     Jus- 
tice and  sound  policy  demand  that  for 
the  protection  of  the   landowner  and 
the    supervisor    the    question    of    the 
legality  of   the  supervisor's   proposed 
act  should   be   determined   before   the 
injury   should    be   done    to    the    farm 
and  the  liability  of  the  latter  should 
be  incurred.    The  law  provides  a  rem- 
edy   for    the    settlement   of    the    con- 
troversy  between   the   parties   in   ad- 
vance of  the  injury  to   the  one  and 
the    liability    incurred    by    the   other, 
by  an  action  in  chancery,  wherein  an 
injunction    will    suspend    the    act    of 
the  supervisor  until  the  questions  of 
law  and  fact  involved   in  the  contro- 
versy are  settled.     This  is  in  accord 
with  justice   and  public  policy."     So 
in  Quinton  v.  Burton,  61  Iowa,  471, 
16   N.   W.    569,    the   road    supervisor 
was  forever  enjoined  from  building  a 
bridge   as   he   proposed   which   would 
destroy    plaintiffs    hedge    and    shade 
trees,  the  question  of  irreparable  in- 
jury not  being  raised.  See,  also,  Bills 
v.  Belknap,  36  Iowa,  583;    Grant  v. 
Crow,  47  Iowa,  632;  McCord  v.  High, 
24  Iowa,  336.    In  Groff's  Appeal,  128 
Pa.    St.    621,635,    18    Atl.    431,    the 
court  said:      "The  rule  as  to  enjoin- 
ing irreparable  injuries  only  has  no 
application    to    acts,    especially    cor- 
porate acts,  entirely  without  author- 
ity, for  which  there  is  no  adequate 
measure  of  damages  at  law." 


80 


Definition  and  Nature  of  Injunctions. 


§41 


necessary  to  allege  or  prove  that  the  threatened  injury  will  be 
irreparable  nor  that  the  defendant  is  insolvent ;  it  is  sufficient  that 
the  contemplated  injury  will  greatly  injure  the  plaintiff.86  And 
under  a  constitutional  provision  that  private  property  shall  not  be 
taken  or  damaged  without  compensation  to  the  owner  it  has  been 
decided  that  an  abutting  owner  may  be  granted  an  injunction 
against  the  grading  of  the  street  in  front  of  his  premises  without 
the  payment  of  compensation  though  there  is  no  allegation  of 
irreparable   injury.87 

§  41.  No  injunction  for  past  acts. — An  injunction  is  for  the 
most  part  preventive,  and  cannot  ordinarily  be  employed  to  cor- 
rect a  wrong  already  done  or  restore  to  a  party  rights  of  which  he 
has  been  deprived.88     So  in  an  early  case  in  New  Jersey  it  is 


86.  §  3388  of  the  Code  provides 
that  a  temporary  injunction  may  is 
sue  where  the  relief  or  any  part 
thereof  "  consists  in  restraining  the 
commission  or  continuance  of  some 
act  which  woula  produce  great  or 
irreparable  injury  to  the  plaintiff," 
and,  this  is  liberally  construed  in 
Price  v.  Baldauf,  82  lowa,  669,  40  X. 
W.  983,  47  N.  \\ .  1079.  But  see  Bol- 
ton v.  Mefihaae,  t;7  lowa,  207,  25  N. 
W.  135,  which  would  seem  generally 
to  require  irreparable  injury  as 
ground  for  a  permanent  injunction 
and  where  the  court  says :  "  It  is  a 
familiar  doctrine  that  the  commission 
of  a  mere  trespass  will  not  be  re- 
.strained  by  injunction  when  the  in 
jury  would  not  be  irreparable,  the 
trespasser  is  solvent,  and  adequate 
compensation  for  the  injury  in  dam- 
ages may  be  recovered  by  law.  But  if 
the  injury  be  irreparable,  chancery 
will  interfere  by  injunction.  See  2 
Story,  Eq.  Jur.   §  928,  and  notes. 

87.  Searle   v.   Lead,   10   S.  D.  312, 
73  N.  W.  101,  39  L.  R.  A.  345. 


88.  United  states. — Baring  v.  Erd 
wan,  Fed.  Cas.  No.  981. 

California. — Gardner  v.  Stroever, 
81  Cal.  148,  22  Pac.  483. 

Florida. — Pensacola  &  Ga.  R.  Co. 
v.  Spratt.  12  Fla.  26,  91  Am.  Dec. 
747. 

Georgia. — McAIaster  v.  City  of 
Waynesboro,  122  Ga.  231,  50  S.  E. 
122;  Georgia  Pac.  Ry.  v.  Douglas 
ville,  75  Ga.  828. 

Illinois. — Menard  v.  Hood,  68  111. 
121;  Mead  v.  Cleland,  62  111.  App. 
294;  Highway  Com'rs  v.  Deboe,  43  111. 
App.  25. 

Indiana^ — Shafer  v.  Fry,  164  Ind. 
315.  73  N.  E.  698;  Cole  v.  Duke,  79 
Ind.  107. 

Louisiana. — Trevigne  v.  School 
Board,  31   La.  Ann.  105. 

Massachusetts. — O'Brien  v.  Mur- 
phy, 189  Mass.  353,  75  N.  E.  700. 

Michigan. — East  Saginaw  Street 
Ry.  Co.  v.  Wildraan,  58  Mich.  286,  25 
X.  W.  193. 

Minnesota. — Vanderburgh  v.  City 
of  Minneapolis,  —  Minn.  — ,  100  N- 
W.  668. 


81 


§41a 


Definition  and  Nature  of  Injunctions. 


declared  that  past  injuries  are  in  themselves  no  ground  for  an 
injunction  and  that  the  province  of  the  injunction  is  not  to  afford 
a  remedy  for  what  is  past  but  to  prevent  future  mischief.  The 
fact,  however,  that  injuries  have  already  been  inflicted  will  not 
prevent  the  granting  of  an  injunction  where  the  injuries  are 
continued  or  the  right  to  continue  them  set  up  and  persisted  in, 
for  in  such  a  case  if  the  facts  are  properly  evStablished  the  court 
will  interfere  for  the  protection  of  the  complainant.89 

§41a.  Same  subject;  application  of  rule. — An  actual  exercise 
of  corporate  judgment  and  will  which  has  already  taken  place 
cannot  be  revoked  or  annulled  by  inj unction.90  And  an  injunction 
suit  to  restrain  the  enforcement  of  an  illegal  contract  for  the  main- 


Missouri. — Davis  v.  Hartwig,  195 
Mo.  380,  94  S.  W.  507;  Graden  v. 
City  of  Parkville,  114  Mo.  App.  527, 
90  S.  W.  115. 

Nebraska. — Bishop  v.  Huff  (Neb. 
1908),  116  N.  VV.  665. 

Nevada. — Sherman  v.  Clark,  4  Nev. 
138,  97  Am.  Dec.  516. 

New  Jersey. — United  N.  J.  R.  & 
C.  Co.  v.  Standard  Oil  Co.,  33  N.  J. 
Eq.   123;    Southard  v.  Morris   Canal, 

1  N.  J.  Eq.  518. 

New  York. — People  v.  Clark,  70 
N.  Y.  518. 

North  Carolina. — Huet  v.  Piedmont 
Lumber  Co.,  138  N.  C.  443,  50  S.  E. 
846. 

Pennsylvania. — Shell  v.  Kemmerer, 

2  Pears,  293. 

Rhode  Island. — Manufacturers' 

Outlet  Co.  v.  Longley,  20  R.  I.  86,  37 
Atl.  535. 

Wisconsin. — Cobb  v.  Smith,  16  Wis. 
661. 

An  injunction  is  a  preventive 
remedy  only,  and  cannot  be  in- 
voked to  restrain  a  party  from  doing 
an  act  which  he  has  already  done.  In 
such  a  case,  the  party  injured  must 


be  remitted  to  his  remedy  at  law, 
which  is,  in  every  respect,  competent 
to  all'ord  adequate  relief.  Kahn  v. 
Old  Teleg.  Min.  Co.,  2  Utah,  13,  18, 
per  Schaell'er,  J.,  citing  Wangelin  v. 
Goe,  50  111.  459. 

As  a  general  rule  it  may  be  said 
that  injunction  is  a  preventive  rem- 
edy and  will  only  be  used  to  prevent 
future  injury,  rather  than  to  afford 
redress  for  wrongs  already  commit- 
ted, and  is,  therefore,  to  be  regarded 
more  as  a  preventive  than  a  remedial 
remedy.  Sproat  v.  Durland,  2  Okla. 
24,  43,  per  the  court. 

"  The  function  of  a  writ  of  in- 
junction is  to  ail'ord  preventive  re- 
lief; it  is  powerless  to  correct  wrongs 
or  injuries  already  committed.  This 
is  alphabetical  law."  City  of  Alma 
v.  Loehr,  42  Kan.  368,  369,  22  Pec. 
424.     Per  Simpson,  C. 

89.  Society  for  Establishing  Use- 
ful Manufactures  v.  Morris  Canal 
Co.,  1  N.  J.  Eq.  157,  191,  21  Am.  Dec. 
41. 

90.  Callan  v.  Board  of  Comm'rs. 
45  La.  Ann.  673,  12  So.  834. 


82 


Definition   and   Nature  of  Injunctions.  §  41a 

tenance  of  a  separate  school  will  not  be  entertained  if  the  contract 
has  been  practically  executed.91     And  ordinarily   an   injunction 
will  not  be  granted  against  striking  employees  after  the  strike  has 
terminated.92     Nor  will  an  injunction  to  restrain  the  issuance  of 
county  warrants  be  granted  where  the  warrants  have  already  been 
issued  and  even  though  granted  it  is  decided  that  it  cannot  in  any 
manner   affect  parties   in   interest.93     And  likewise   a  perpetual 
injunction  will  not  be  granted  to  restrain  city  officers  from  issuing 
its  bonds  in  aid  of  local  improvements  where  such  bonds  had  been 
issued,  sold  and  delivered  before  the  temporary  injunction  was 
served.94     Nor  will  the  jurisdiction  of  the  court  in  a  proceeding 
be  aided  by  a  prayer  for  an  injunction  where  the  bill  is  not  for  an 
injunction  as  a  primary  remedy  but  seeks  to  secure  and  preserve 
certain  property  from  sale  during  litigation,   it  appearing  that 
when  the  bill  was  filed  there  was  no  property  to  protect  as  it  had 
been  sold.93    And  though  a  threatened  unauthorized  and  injurious 
removal  of  the  office  of  a  mining  company,  by  a  person  acting  as 
superintendent  and   secretary  might  be  enjoined,   an  injunction 
would  not  reach  the  case  of  a  removal  already  made.96    And  like- 
wise an  injunction  will  not  lie  against  the  removal  of  a  building 
which  has  been  already  moved,97  or  against  the  erection  of  a  build- 
ing where  the  building  had  been  erected  before  the  commencement 
of  tho  action.98     So  after  a  bridge  has  been  completed  it  is  too 
late  to  obtain  an  injunction  to  prevent  its  completion,  and  it  is 
not  within  the  power  of  a  chancellor  at  chambers  to  grant  a  manda- 
tory order  requiring  a  municipal  corporation  to  remove  any  part 
of  a  bridge  forming  a  part  of  one  of  its  streets,  but  on  the  final 
trial  equitable  relief  may  be  decreed.99     And  though  a  court  of 
equity  may  be  required  by  statute  to  issue  an  injunction  where 

91.  Fugate  v.  McManama,  50  Mo.  96.  Sherman  v.  Clark,  4  Nev.  138, 
App.   39.                                                              97  Am.  Doc.  516. 

92.  Reynolds   v.    Everett,    67   Hun  97.  East    Saginaw    St.    R.    Co.    v. 
(X.  Y.),  29},  22  X.  Y.  Supp.  306.  Wildman,  58  Mich.  286,  25  N.  W.  193. 

93.  Webster  v.  Fish,  5  Nev.  190.  98.  Gardner    v.    Stroever,    81    Cal. 

94.  City    of    Alma     v.     Loehr,    42  148,  22  Pac.  483. 

Kan.  308.   22  Pac.  424.  99.  Georgia  Pacific  R.  Co.  v.  Doug- 

95.  Cecil    Nat.    Bank    v.    Thurbee,       lasville,  75  Ga.  828. 
59  Fed.  913,  8  C.  C.  A.  365. 

83 


§42  Definition    and  Nature  oi    Injunctions. 

certain  facts  arc  proven,  yet  the  purpose  of  the  writ  being  to 
prevent  the  continuance  of  a  nuisance  or  wrong,  it  is  evident  that, 
if  it  is  clearly  apparent  to  the  court  that  there  will  not  and  cannot 
be  a  continuance  thereof,  it  is  entirely  proper  to  refuse  the  writ.1 
But  in  Pennsylvania  it  is  decided  that  on  an  application  for  a 
preliminary  injunction  a  mandatory  order  may  be  made  restoring 
the  status  quo  which  existed  prior  to  the  wrongful  act  and  preserv- 
ing it  until  the  final  hearing,2  and  this  rule  has  been  adopted  in 
order,  as  has  been  said,  to  check  the  alleged  disposition  of  corpora- 
tions, both  private  and  municipal,  to  settle  their  controversies  by 
force  instead  of  applying  to  the  court  for  an  adjustment  of  their 
differences.3 

§42.  Laches  and  acquiescence;  general  rule. — An  injunction 
is  not  a  matter  of  right  and  will  not  be  issued  when  upon  a  broad 
consideration  of  the  situation  of  the  parties,  good  conscience  does 
not  require  it.4  A  party  may  forfeit  his  right  to  an  injunction  by 
sleeping  on  his  rights  and  allowing  a  grievance  to  continue  for  a 
long  time.5    The  court  lends  its  aid  only  to  the  vigilant,  active  and 

1.  Redley  v.  Greiner,  117  Iowa,  him  in  its  use  pending  this  litiga- 
679,  680,  91    N.   W.   1033,  per  Sher-       tion." 

win,  J.  4.  Pennsylvania  P.  R.  Co.  v.  Glen- 

2.  Whiteman  v.  Fuel  Gas  Co.,  139  wood  &  Dravosburg  Elec.  S.  R.  Co., 
Pa.  St.  492,  20  Atl.  1062;  Black  Lick  184  Pa.  St.  227,  237,  39  Atl.  80; 
Co.  v.  Saltsburg  Gas  Co.,  139  Pa.  St.  Heilman  v.  Lebanon  &  Annville  St. 
448,  21  Atl.  432;  Thompson  Glass  Ry.  Co.,  175  Pa.  St.  188,  198,  34  Atl. 
Co.  v.  Fayette  Gas  Co.,  137  Pa.  St.  647;  Messner  v.  Railway  Co.,  13  Pa. 
317,  21  Atl.  93.  Super.    Ct.     429,     434.      See,     also, 

3.  Easton,  S.  E.  &  W.  E.  R.  Co.  v.  Skrainka  v.  Oertel,  14  Mo.  App.  474. 
Easton  City,  133  Pa.  St.  505,  19  Atl.  5.  United  States.— Felix  v.  Pat- 
486;  Cooke  v.  Boynton,  135  Pa.  St.  rick,  145  U.  S.  317,  12  Sup.  Ct.  862, 
102,  19  Atl.  944,  where  the  court  36  L.  Ed.  719;  Hoyt  v.  Latham,  143 
said:  "What  we  did  in  the  Easton  U.  S.  553,  12  Sup.  Ct.  368,  36  L.  Ed. 
case  we  will  do  here.  ...  As  far  259;  Hammond  v.  Hopkins,  143  U. 
as  it  is  possible  on  a  preliminary  in-  S.  524,  12  Sup.  Ct.  418,  36  L.  Ed. 
junction  we  will  restore  the  status  134;  Bailey  v.  Glover,  21  Wall.  342, 
quo    as    it    existed    prior    to    the    de-  22  L.  Ed.  636. 

fendant's  acts.     While  the  injunction  Alabama. — Johnson       v.       Oldham 

will  not  require  the  defendant  to  re-  (Ala.    1906),    40    So.    213;    Western 

lay  the  tramway,  it  will   enable  the  TJn.  Tel.  Co.  v.  Judkins,  75  Ala.  428. 

plaintiff   to   do  so,   and   will   protect  California. — Bigelow  v.  City  of  Los 

84 


Definition   and  Xatuke  of  Injunctions. 


§42 


faithful.      Unreasonable    delay    and    mere    lapse    of    time,    inde- 
pendently of  any  statute  of  limitations,  constitutes  a  defense  in 


Angeles,    141   Cal.   503,   75   Pac.    111. 

District  of  Columbia. — Keane  v. 
Chamberlain,  27  Wash.  Law  Rep.  98. 

Georgia. — Atlantic  &  B.  R.  Co.  v. 
Kirkland  (Ga.  1907),  59  S.  E.  220; 
Wood  v.  Macon  &  B.  R.  Co.,  68  Ga. 
539. 

Illinois. — Carney  v.  Marseilles,  136 
111.  401,  26  N.  E.  491;  Higgins  v. 
Bullock,  73  111.  205. 

Indiana. — Midland  R.  Co.  v.  Smith, 
113  Ind.  233,  15  N.  E.  256;  Logans- 
port  v.  Uhl.  99  Ind.  531,  49  Am.  Rep. 
109. 

Kansas. — Reisner     v.     Stron_ 
Kan.    410. 

Maryland. — Baltimore  v.  Grand 
Lodge,  44  Md.  436. 

Massachusetts. — Levi  v.  Worcester 
Consol.  St.  R.  Co.,  193  Mass.  116,  78 
N.  E.  853;  Smith  v.  Brown.  Iti4  Mass. 
584,  42  N.   E.    101. 

Nebraska. — Brown  v.  Kramer,  18 
Neb.  355,  25  X.  W.  356. 

\  i  Jersey. — Island  Heights  Ass'n 
v.  Island  Heights  W.  P..  (J.  &  S.  Co. 
(1906),  62  Atl.  773;  Cronin  v.  Bloem- 
ecke,  58  X.  J.  Eq.  313.  43  Atl.  605; 
Ocean  City  Ajm'b  v.  Schuich.  57  X. 
J.  Eq.  268,  41  Atl.  914;  Meredith  v. 
Sayre,  32  X.  I.  Bq.  557;  Traphagen 
v.  Jersey  City.  29  X.  J.  Eq.  206; 
Liekstein  v.  Xewark,  24  X.  J.  Eq. 
200;  Scudder  v.  Trenton  Delaware 
Falls  Co..  1  X.  J.  Eq.  694,  23  Am. 
Dec.   756. 

1 1  tr  York. — See  Knoth  v.  Manhat- 
tan Ry.  Co.,  187  X.  Y.  243,  251,  79 
N.  E.  1015;  affg.  109  App.  Div.  802; 
Musgrave  v.  Sherwood,  54  How.  Prac. 
338 ;  Xinth  Ave.  R.  Co.  v.  New  York 
El.  R.  Co.,  3  Abb.  N.  C.  347. 

No-rth   Carolina. — Moore    v.    Silver 


Valley  Mining  Co.,  104  X.  C.  534,  10 
S.  E.  679;  Pender  v.  Pittman,  84  N. 
C.  372. 

Ohio. — Goodwin  v.  Cincinnati  &  W. 
C.  Co.,  18  Ohio  St.  169;  Chapman  v. 
Mad  River  &  L.  E.  R.  Co.,  6  Ohio 
St.  119. 

Pennsylvania* — Stewart  Wire  Co. 
v.  Lehigh  Coal  &  X.  Co.,  203  Pa.  St. 
474,  53  Atl.  352;  Pennsylvania  R.  R. 
Co.  v.  Glenwood  &  Dravosburg  E'ec. 
St.  R.  Co.,  184  Pa.  St.  227,  39  Atl. 
80;  Commonwealth  v.  I  rousliore,  14j 
Pa.  St.  157,  22  Atl.  807 j  Orne  v.  Fri- 
denburg,  143  Pa.  St.  487,  22  Ail 
832;  Grey  v.  Ohio  &  P.  Ry.  Co.,  1 
Grant  Cas.  412. 

YVxu.v. — liorrifl  v.  Edwards,  62  Tex. 
205. 

Wieeotfin. — Helms  v.  McFadden, 
18  Wis.  191;  Sheldon  v.  Rockwell,  9 
Wis.    Itiii,   76   Am.  Dec.   265. 

nla.— Yeats   v.  St.  John,  N.    B. 
Eq.  Cas.  25. 

But  see  Bender  v.  Stein,  27  Ala 
104,  62  Am.  Dec.  758. 

It  is  a  familiar  rule  that  the 
time  at  which  a  party  appeals  t a  a 
court  of  equity  for  relief  affects 
largely  the  character  of  relief  which 
will  be  granted.  The  principle  has 
frequently  been  applied  in  !he  de- 
cisions of  this  court  and  the  Supreme 
Court  of  the  United  States.  Knoth 
v.  Manhattan  Ry.  Co.,  187  X.  /.  243, 
251,  79  X.  K.  1015,  affg.  109  App. 
Div.  802,  per  Bartlett,  J. 

The  diligence  required  by  the 
law  ought  to  be  measured  by  the 
mischief  which  would  ensue  from  a 
want  of  it.  Sheldon  v.  Rockwc".  .• 
Wis.  166,  183.     Per.  Dixon,  J. 

As  to   sale   under    execution.- 


85 


H2 


Definition  and  Nature  of  Injunctions. 


a  court  of  equity.  This  doctrine  is  very  ancient  and  established 
by  a  great  number  of  decisions.6  So  an  injunction  will  be  refused 
to  a  complainant  who  has  intentionally  delayed  his  application 
until  he  has  obtained  an  inequitable  advantage  of  the  defendant.7 
And  in  particular  should  delay  and  laches  operate  as  an  estoppel 
where  the  rights  of  innocent  third  persons  have  intervened.8     A 


Where  defendants  consent  to  waive 
all  defenses,  and  confess  judgment  on 
the  strength  of  a  verbal  agreement 
that  plaintiffs  will  stay  execution  for 
a  year,  they  cannot  enjoin  a  sale 
under  the  execution  which  plaintiffs 
levied  before  the  end  of  the  year,  be- 
ing guilty  of  laches  in  standing  by 
and  permitting  the  execution  to  be 
levied  without  moving  the  court  to 
recall  it.  Moulton  v.  Knapp,  26  Pac. 
210,  88  Cal.  446,  aff'g  85  Cal.  386. 

The  court  will  enjoin  a  party 
from  pleading  the  statute  of 
limitations  to  a  suit  at  law  where 
the  complainant  lost  his  remedy  dur- 
ing the  pendency  of  an  injunction 
against  him  at  the  suit  of  the  de- 
fendant, but  if  he  has  been  guilty  of 
laches  or  negligence,  the  court  will 
deny  him  relief.  Doughty  v.  Doughty, 
10  N.  J.  Eq.  348. 

Unexplained  acquiescence  in 
the  infringement  of  a  patent 
will  forfeit  the  right  to  injunctive  re- 
lief. Mundy  v.  Kendall,  23  Fed.  591; 
Ladd  v.  Cameron,  25  Fed.  37 ;  Sperry 
v.  Ribbans,  1  N.  J.  Law  Jour.  115. 
Compare  Consolidated  Fastener  Co.  v. 
American  Fastener  Co.,  94  Fed.  523. 

By  owner  of  copyright. — In 
Lewis  v.  Chapman,  3  Beavan,  133, 
the  plaintiff  sought  to  restrain  the 
publication  of  a  work  of  which  he 
was  the  owner  of  a  copyright.  It  ap- 
peared he  had  lain  still  for  six  years 
and  seen  the  defendant  expending  his 
money    in    printing    the    work,    etc.; 


upon   this   ground   equity   refused   to 
relieve  the  plaintiff. 

6.  Sheldon  v.  Rockwell,  9  Wis.  166, 
181.     Per  Dixon,  J. 

See  preceding  notes  in  this  section 
for  citations. 

7.  Traphagen  v.  Jersey  City,  29 
N.  J.  Eq.  206,  where  the  chancellor 
said :  "  It  is  undisputed  that  the 
complainants  have  permitted  the  au- 
thorities to  oust  them  and  to  take 
possession  of  the  land  they  now 
claim,  and  to  expend  in  preparing  it 
for  use  as  a  public  street,  a  large 
amount  of  public  funds,  and  that 
since  it  has  been  so  prepared,  they 
have  stood  by  quietly  and  permitted 
it  to  be  constantly  appropriated  to 
the  purposes  of  a  public  highway. 
Under  these  circumstances  they  have 
so  far  sanctioned  the  action  of  the 
public  authorities  as  to  divest  them- 
selves of  the  right  to  demand  that 
a  court  of  equity  shall  now  by  its 
interdiction  deprive  the  public  even 
temporarily  of  the  benefit  of  its  ex- 
penditure." Morris,  etc.,  R.  Co.  v. 
Prudden,  20  N.  J.  Eq.  530;  Easton  v. 
New  York,  etc.,  R.  Co.,  24  N.  J.  Eq. 
49. 

8.  Moore  v.  Silver  Valley  Mining 
Co.,  104  N.  C.  534,  10  S.  E.  679, 
where  it  was  said:  "  Accepting  the 
case  as  presented,  the  plaintiff  must 
have  been  cognizant  for  many  years 
of  the  grievances  of  which  he  com- 
plains. A  variety  of  remedies  were 
open  to  him.    It  does  not  appear  that 


86 


Definition  and  Mature  of  Injunctions.         §  42a 

mere  delay,  however,  is  not  sufficient  to  deprive  a  party  of  injunc- 
tive relief  but  the  failure  to  act  must  be  with  a  knowledge  of  con- 
ditions that  would  amount  to  an  acquiescence  in  the  doing  of  the 
thing  subsequently  complained  of.9 

§  42a.  Laches  and  acquiescence ;  rule  illustrated — The  rule 
that  a  person's  right  to  an  injunction  may  be  barred  by  laches 
includes  those  cases  where  the  complainant  has  stood  by  and  per- 
mitted the  defendant  to  expend  large  sums  of  money  in  the  exer- 
cise of  a  supposed  or  asserted  right.  In  such  a  case  it  would  be 
inequitable  to  grant  the  injunction  and  the  complainant  will  be 
left  to  his  legal  remedy.10  So  where  a  person  stands  by  and  silently 
sees  a  public  railroad  constructed  upon  his  land,  it  is  too  late  for 
him,  after  the  road  is  completed,  or  large  sums  have  been  ex- 
pended on  the  faith  of  his  apparent  acquiescence,  to  seek  by 
injunction  to  deny  to  the  railroad  company  the  right  to  use  his 
property.11  And  where  an  abutting  owner  does  not  bring  an  action 
to  enjoin  the  construction  of  a  public  work  until  such  work  i9 
substantially  completed,  the  court  is  justified  in  refusing  to  grant 

he  ever  in  any  way  took  steps  to  ar-  36   Atl.    186;    Yeats   v.   St.   John,   N. 

rest  or  seek  redress  on  account  of  the  B.  Eq.  Cas.  25. 

same,  nor  is  any  cause  assigned  for  11  Goodin   v.  Cincinnati  &  W.  C. 

or  explanation  given  for  such  delay.  Co.,    18   Ohio    St.    169,   98   Am.    Dec. 

This  is  singular  and  suggestive  of  a  95,  holding  that  in  such  a  case  there 

want  of  good  faith.     In  the  meantime  only  remains  to  the  owner  the  right 

rights  of  third  persons — so  far  as  ap-  of    compensation.      The    court    said: 

pears,   innocent  persons — have  super-  "  The  injunction   in  the   present  case 

vened.    The  plaintiff  is  clearly  charge-  might  have  been  sought  at  the  first 

able  with  gross  laches  and  upon  well  known    attempt,    or    even    threat,    to 

settled  principles  of  equity  he  cannot  despoil  the  canal,  or  to  construct  the 

now    be    allowed    to    prejudice    such  railroad  upon  its  line.     The  omission 

rights."     See  Mackintyre  v.  Jones,  9  to   do   so  is   an   implied  assent.     The 

Pa.  Super.  Ct.  543.  work  being  completed,  the  public,  as 

9.  Adams  v.  Birmingham  Realty  well  as  those  directly  interested  in 
Co.   (Ala.  1908),  45  So.  891.  the   road,   as   stockholders   and    cred- 

10.  Smith  v.  Brown,  164  Mass.  itors,  have  a  right  to  insist  on  the 
584,  42  N.  E.  101;  Moore  v.  Silver  application  of  the  rule  that  he  who 
Valley  Min.  Co.,  104  N.  C.  534,  10  S.  will  not  speak  when  he  should,  will 
E.  679;  Riverton  Ferry  Co.  v.  Mc-  not  be  allowed  to  speak  when  he 
Keesport  &  D.  B.  Co.,  179  Pa.  St.  466,  would."     Per  Welch,  J. 

87 


§42a 


Definition  and  Nature  of  Injunctions. 


a  preliminary  injunction  in  view  of  the  public  interests  involved, 
and  of  the  fact  that  such  an  injunction,  while  it  would  affect  most 
seriously  those  engaged  in  the  construction  of  the  work  would  be 
of  no  material  advantage  to  the  abutting  owner.12  And,  so,  where 
the  owner  of  the  fee  of  a  highway  and  of  abutting  lots  permitted 
a  railroad  to  be  constructed  therein  at  great  expense,  without  doing 
more  than  object  to  it,  it  was  held  by  the  Supreme  Court  of  Mis- 
souri that  he  should  at  once  have  taken  positive  action  against  the 
injury  of  which  he  complained,  and  not  have  waited  until  the  road 
was  completed,  and  that  by  his  long  acquiescence  he  had  forfeited 
his  right  to  an  injunction.13  And  in  this  connection  it  has  been 
decided  that  a  party  by  whose  encouragement  expenditures  have 
been  made  to  such  an  extent  as  are  not  capable  of  reimbursement 
except  by  enjoyment  will  be  enjoined  from  disturbing  the  posses- 
sion, as  in  such  a  case  he  is  estopped  by  equity  because  he  would 
wrong  the  other  party  by  withdrawing  his  consent.14    Again,  where 


12.  Barney  v.  City  of  New  York, 
83  App.  Div.  (N.  Y.)  237,  82  N.  Y. 
Supp.  124.  See,  also,  Yeats  v.  St. 
John,  N.  B.  Eq.  Cas.  25,  so  holding 
in  case  of  a  change  of  grade  of  a 
street. 

13.  Planet  Property  &  Financial 
Co.  v.  St.  Louis,  O.  H.  &  C.  R.  Co., 
115  Mo.  613,  22  S.  W.  616,  per  Bur- 
gess, J. :  "  The  city  ordinance  under 
which  defendant's  road  was  con- 
structed was  approved  June  15,  1886, 
and  by  the  eleventh  section  defend- 
ant was  required  to  commence  its 
construction  in  good  faith  within 
three  months  from  its  passage  and 
to  complete  within  one  year  there- 
after. This  suit  was  not  commenced 
until  September  23,  1890,  and  while 
plaintiff  alleges  that  the  road  has 
been  constructed  and  is  being  oper- 
ated it  took  no  steps  to  prevent  the 
entry  of  defendant  on  its  land  and 
the  construction  of  its  road.  The  pe- 
tition does  aver,  however,  that  it  ob- 


jected and  notified  defendant  of  its 
objection  while  the  road  was  being 
built.  It  seems  that  equity  and  fair 
dealing  would  have  required  plain- 
tiff to  have  taken  some  action  in 
order  to  have  prevented  the  injury 
complained  of  and  that  it  ought  not 
to  be  permitted  to  stand  by  and  see 
the  work  going  on  and  large  sums  of 
money  in  and  about  the  same  being 
expended  and  after  all  this  has  been 
done  and  the  road  completed  and  in 
operation,  then  come  into  a  court  of 
equity  and  ask  that  the  defendant  be 
enjoined  and  restrained  from  the  op- 
eration of  its  road  until  it  shall  have 
been  compensated  for  the  injury  to 
its  lands  by  reason  of  its  construc- 
tion and  operation.  An  injunction  j" 
should  not  be  granted  under  such 
circumstances.  There  is  no  equity  in 
the  bill  and  the  demurrer  to  the  peti- 
tion was  properly  sustained." 

14.  Big     Mountain     Improvement 
Co.'s  Appeal,  54  Pa.  St.  361,  372. 


88 


Definition  and  Natuee  of  Injunctions. 


43 


plaintiff's  grantors  stood  by  and  permitted  defendant  to  build  on 
an  adjoining  lot  in  violation  of  a  restriction  in  his  deed,  an 
injunction  to  restrain  the  further  maintenance  of  the  buildings 
was  denied  to  plaintiff  and  he  was  left  to  his  remedy  at  law.15  And 
a  preliminary  injunction  will  not  be  granted  to  restrain  infringe- 
ment of  a  patent  when  it  is  shown  that  the  defendant  has,  with 
the  knowledge  of  the  complainant  openly  used  the  infringing 
mechanism  for  more  than  seven  years  before  the  suit  was  brought.16 

§  43.  Same  subject ;  when  laches  no  defense. — In  New  York 
it  has  been  determined  that  the  doctrine  of  acquiescence  or  laches 
as  a  defense  to  an  equity  action  is  limited  to  actions  of  an  equitable 
nature  exclusively,  or  to  those  where  the  legal  right  has  expired 
or  the  party  has  lost  his  right  of  property  by  prescription  or 
adverse  possession  ;  and  that  the  mere  laches  of  a  party  not  amount- 
ing to  an  estoppel  is  no  defense  where  the  courts  are  called  upon 
to  sustain  a  legal  right  upon  grounds  of  equity  and  to  afford  relief 


15.  Orne  v.  Fridenberg,  143  Pa.  St. 
487,  22  Atl.  832,  where  the  court 
said :  "  The  answer  avers  that 
the  erections  complained  of  are 
the  same  that  existed  on  the 
premises  when  the  defendant's  tes- 
tator first  viewed  and  bought  the 
premises  in  1875  and  had  then  existed 
more  than  21  years.  There  is  no  find- 
ing by  the  master  which  contradicts 
the  answer  in  this  respect.  Exact 
dates  are  not  very  material  in  our 
view  of  the  case  as  it  is  undisputed 
that  all  the  structures  were  there 
many  years  before  this  bill  was  filed. 
.  .  .  It  must  not  be  forgotten  that 
the  defendants  did  not  put  up  the  of- 
fending building,  nor  did  their  tes- 
tator. He  found  them  there  when  he 
purchased  the  property,  and  may  well 
have  supposed  that  the  restrictions 
were  no  longer  in  force.  Be  that  as 
it  may  the  fact  remains  that  the 
plaintiff    was    guilty    of    very    gross 


laches  in  enforcing  his  rights.  If 
there  is  anything  well  settled  in 
equity,  it  is  that  a  chancellor  will 
not  extend  the  aid  of  an  injunction 
where  a  party  has  slept  for  a  long 
time  upon  his  rights.  This  is  the 
recognized  rule  in  England  and  this 
country.  See  German  R.  C.  Asylum's 
Appeal,  115  Pa.  St.  165,  10  Atl.  37; 
Water  Lot  Co.  v.  Bucks,  5  Ga.  315; 
Mitchell  v.  Steward,  L.  R.  1  Eq.  541 ; 
Roper  v.  Williams,  12  Eng.  Ch.  23. 
In  Clark  v.  Martin,  49  Pa.  St.  289, 
where  a  mandatory  injunction  was 
awarded  to  abate  a  building  erected 
in  violation  of  a  restriction  the  ap- 
plication was  promptly  made  before 
its  erection.  Indeed,  I  doubt  if  a 
case  can  be  found  in  the  books  where 
an  injunction  has  been  awarded  after 
the  delay  that  has  been  shown  here." 
16.  Ladd  v.  Cameron  (N.  J.  1885), 
25  Fed.  R.  37. 


89 


§43 


Definition  and  Natube  of  Injunctions. 


by  injunction  for  that  purpose.17  Thus  an  injunction  may  be 
granted  with  alternative  damages  because  it  actually  operates 
as  a  substitute  for  the  legal  remedy  of  condemnation  proceedings.18 
Where  the  fact  of  a  nuisance  is  free  from  doubt,  a  delay  of  several 
months  will  not  bar  relief  by  preliminary  injunction.19  And  mere 
knowledge  on  the  part  of  a  life  tenant  and  one  of  the  tenants  in 


17.  Syracuse  Salt  Co.  v.  Rome, 
etc.,  R.  Co.,  22  N.  Y.  Supp.  321, 
where  the  injunction  was  sus- 
tained because  the  injunctive  relief 
and  its  alternative  damages  were 
deemed  a  substitute  for  the  ordinary 
statutory  proceedings  at  law  for  con- 
demnation; and  the  court  was  of 
opinion  that  "  the  plaintiff's  legal 
rights  were  clearly  involved  in  the 
action  and  that  the  mere  acquiescence 
or  laches  of  the  plaintiff  not  amount- 
ing to  an  estoppel  constitutes  no 
defence."  See  Uline  v.  New  York 
Central  &  H.  R.  R.  Co.,  101  N.  Y. 
98,  4  N.  E.  536;  Tallman  v.  Metro- 
politan El.  R.  Co.,  121  N.  Y.  123,  23 
N.  E.  1134;  Colreck  v.  Swinburne,  105 
N.  Y.  503,  12  N.  E.  427;  Arnold  v. 
Hudson  River  R.  Co.,  55  N.  Y.  061. 
In  Corning  v.  Troy,  etc.,  Factory,  40 
N.  Y.  191,  205,  the  court  said:  "It 
is  insisted  that  the  equitable  right  of 
restoration  has  been  lost  by  delay. 
The  statute  of  limitation  either  at 
law  or  in  equity  has  not  attached  so 
as  to  bar  the  right.  The  case  has, 
therefore,  no  analogy  to  that  class  of 
cases  where  equity  has  refused  relief 
on  the  ground  that  the  legal  remedy 
was  barred  by  the  statute.  .  .  . 
All  there  is  of  the  delay  in  this  case 
is  that  the  plaintiffs  finding  the  de- 
fendant using  their  water  power  have 
permitted  it  to  continue  such  use 
for  about  four  years.  Clearly  this 
indulgence  furnishes  no  reason  for 
the  refusal  of  equity  to  aid  the  plain- 


tiffs   in    the    recovery    of    their    legal 
rights." 

18.  In  Galway  v.  Metropolitan  El. 
R.  Co.,  128  N.  Y.  132,  28  N.  E.  479, 
in  an  action  to  restrain  the  company 
which  had  constructed  its  road  in  a 
street  and  thereby  interfered  with 
plaintiff's  easements  therein,  it  ap- 
peared that  the  action  was  not 
brought  until  1889  while  plaintiff  ob- 
tained title  before  1878  during  which 
year  defendant  without  acquiring 
plaintiff's  easements  commenced  and 
completed  its  road.  The  court  founa 
that  plaintiff  saw  the  road  from  time 
to  time  while  in  process  of  construc- 
tion and  occasionally  rode  thereon? 
that  he  had  subscribed  to  a  fund  to 
prevent  its  erection,  but  prior  to  this 
action  made  no  protest  and  took  no 
proceeding  to  prevent  its  construc- 
tion. It  was  also  found  that  after 
this  action  was  begun  defendant 
brought  proceedings  to  condemn  said 
easements  which  were  pending  at  the 
time  of  the  trial.  The  court  granted 
an  injunction  to  restrain  defendant 
from  operating  the  road  unless  it  pay 
plaintiff  a  certain  sum  as  the  depre- 
ciation- of  the  value  of  plaintiff's 
premises  and  this  injunction  was  sus- 
tained on  appeal.  See,  also,  Amer- 
ican Bank  Note  Co.  v.  New  York  El. 
R.  Co.,  129  N.  Y.  252,  270,  29  N.  E. 
302. 

19.  Meigs  v.  Lister.  23  N.  J.  Eq. 
200. 


90 


Definition  and  Nature  of  Injunctions.  §  44 

common  in  remainder,  of  property  adjoining  an  alley,  of  the  erec- 
tion of  a  building  across  the  alley,  and  failure  to  object,  do  not 
create  an  estopppl  in  favor  of  the  persons  erecting  the  building, 
who  by  their  own  title  to  adjacent  property  had  information  that 
the  alley  was  appropriated  to  the  use  of  all  the  adjacent  owners.20 
Again,  where  an  ordinance  authorizing  the  erection  of  a  structure 
in  a  street  was  held  to  be  invalid  and  inoperative  it  was  decided 
that  complainants  alleging  irreparable  injury  to  their  property 
by  the  obstruction  of  light  and  air  by  such  structure  were  not 
deprived  of  their  right  to  an  injunction  because  they  did  not  object 
to  the  passage  of  the  ordinance  or  make  known  their  objections 
until  the  structure  was  near  completion.21  And  it  has  been  de- 
clared that  no  laches  on  the  part  of  taxpayers  or  others  can  operate 
to  confer  authority  upon  the  officials  of  a  corporation  in  a  case 
where  such  officials  are  wholly  without  power  to  act.22 

§  44.  Same  subject ;  in  England. — Though  it  may  not  amount 
to  proof  of  acquiescence  delay  may  disentitle  a  party  to  summary 
interference  of  the  court  by  interlocutory  injunction,  whatever 
his  right  may  prove  to  be  at  the  final  hearing.23  But  the  English 
rule  is,  that  delay  in  taking  proceedings  is  not  material  so  long 
as  matters  remain  in  stahi  quo.2*  And  in  other  cases  it  is  decided 
that  where  a  plaintiff  seeks  an  injunction  in  aid  of  his  legal  right, 
relief  will  not  be  refused  on  the  ground  of  mere  delay  on  his  part, 
unless  he  is  barred  by  the  statute  of  limitations.25 

20.  Welsh  v.  Taylor,  2  N.  Y.  Supp.  Western  R.  Co.  v.  Oxford,  etc.,  R. 
815.  Co.,  3  DeG.,  M.  &  G.  363;    Ware  v. 

21.  Townsend  Grace  &  Co.  v.  Ep-  Regents  Canal  Co.,  3  DeG.  &  J.  230; 
stein,  93  Md.  537,  49  Atl.  629,  86  Salisbury  v.  Metropolitan  R.  Co.,  18 
Am.  St.  Rep.  441,  52  L.  R.  A.  409.  W.  Rep.  484.     Where  a  trifling  inter- 

22.  Storey  v.  Murphy,  9  N.  D.  ference  with  ancient  light  has  been 
115,  81  N.  W.  23,  holding  that  laches  submitted  to  for  six  years,  the  court 
does  not  ordinarily  prevent  the  in-  will  not  grant  an  injunction  but  leave 
tervention  of  a  taxpayer  to  enjoin  plaintiff  to  his  rights  at  law.  Gaunt 
a  disbursement  of  public  funds  about  v.  Fynney,  L.  R.  8  Ch.  App.  8. 

to  be  made  without  the  authority  of  24.  Rochdale  Canal  Co.  v.  King,  2 

law  or  in  defiance  of  law.  Sim.  N.  S.  78 ;  Gale  v.  Abbott,  8  Jur. 

23.  Attorney  Gen.  v.  Sheffield  Gas      N.  S.  987. 

Co.,    3    DeG.,    M.    &    G.    304;    Great  25.  Fulwood   v.   Fulwood,  38   Law 

91 


§45  Definition  and  Nature  oi    1n.il  notions. 

§  45.  Injunctions  in  foreign  countries. — In  France,  where 
writs  of  mandamus  and  injunction  are  unknown,  the  same  remedy 
is  obtained  by  a  summary  order  of  the  judge  termed  an  order  of 
refere.26  In  the  Province  of  Quebec  the  writ  of  injunction  may, 
it  seems,  serve  the  purpose  of  a  mandamus,  and  is  governed  by  the 
provisions  of  the  Code  of  Procedure  which  are  applicable  to 
mandamus.27  In  1876  Mr.  Justice  Mackay,  sitting  at  Montreal  in 
the  Superior  Court,  said  that  they  were  in  their  infancy  in  that 
province  in  the  matter  of  injunctions,  as  their  Code  had  no  pro- 
visions made  expressly  applicable  to  injunctions,  and  ho  proposed 
to  treat  them  with  such  caution,  that  "  rascals  like  Fisk  in  the 
neighboring  States  "  should  not  be  able  to  get  an  injunction  "  upon 
allegations  of  information  and  belief  merely."  **  In  1878  an  act 
was  passed  to  provide  for  the  issuing  of  the  writ  of  injunction  in 
the  Province  of  Quebec  and  to  regulate  the  procedure  therefor;23 
and  probably  a  party  applying  for  an  injunction  under  that  statute 
must  conform  to  the  general  rules  existing  in  England  and  the 
United  States ;  but  it  is  likely  that  the  jurisdiction  of  the  Superior 
Court  outlined  by  that  act  is  narrower  than  the  jurisdiction  of  our 
courts.30  Injunctions  in  fche  nature  of  the  Roman  interdicts  unde 
vi,  to  restore  a  possession  from  which  one  has  been  forcibly  ejected, 
are  said  to  still  exist  in  Ireland,  under  the  name  of  possessory 
bills.31 

T.  R.  N.  S.  380;   cited  and  followed  31.  Story,  Eq.  Jur.   §   870;    Eden, 

in  Rowland  v.  Mitchell,  75  Law  T.  R.  Tn  junc.    p.    334.      Injunction    aa    is 

N.   S.  65.  sued  by  courts  of  equity  partake  of 

26.  Bourgouin  v.  Montreal,  etc.,  the  nature  of  the  decretal  interdicts 
R.  Co.,  19  L.  Can.  Jurist,  57;  Daffry,  of  the  Roman  law  as  issued  by  the 
Lots  d'  Expropriation,  pp.  9,  12,  428;  praetor,  by  which  he  commanded  or 
Merlin,  Quest  de  droit,  vo.  Denoncia-  prohibited  something  to  be  done. 
tion  de  Novel  Oeuvre,  pp.  165,  166,  They  were  of  three  kinds:  prohib- 
167;  see,  also,  Code  de  Civile  Pro-  itory,  by  which  he  forbade  something 
cedure  de  France,  §§  806-811.  to  be  done,  as  when  he  forbade  force 

27.  Bourgouin  v.  Montreal,  etc.,  against  a  lawful  possessor;  restitu- 
R.  Co.,  19  L.  Can.  Jurist,  57.  tory,,  by  which  he  directed  something 

28.  Kane  v.  Montreal  Tel.  Co.,  20  to  be  restored  where  one  had  been 
L.  Can.  Jur.  120.  deprived  of  possession  by  force;   and 

29.  41  Vict.  c.   14    (Que.).  exhibitory,    by   which    he    ordered    a 

30.  Parent  v.  Shearer  (1879),  23  person  or  thing  to  be  produced. 
L.  Can.  Jur.  42.  Story,  Eq.  Jur.  13  ed.  §§  865,  866. 


Definition  and  Nature  of  Injunctions. 


46 


§  46.  Effect  of  injunctions  on  statute  of  limitations. — The 
time  during  which  a  judgment  creditor  is  stayed  by  an  injunction 
from  enforcing  a  judgment  is  not  a  part  of  the  ten  years  to  which 
the  lien  of  a  judgment  is  limited.32  And  the  time  during  which 
any  person  entitled  to  enforce  a  judgment  is  stayed  from  enforcing 
it,  by  an  injunction,  is  not  a  part  of  the  time  limited  for  issuing 
an  execution  on  the  judgment,  or  for  making  an  application  for 
leave  to  issue  such  an  execution.33  And  the  staying  of  an  execution 
in  the  hands  of  a  sheriff  suspends,  during  its  continuance,  the 
running  of  the  statutory  term  of  sixty  days  within  which  he  is 
required  to  return  the  execution.34  In  Maryland  and  Mississippi, 
too,  it  is  held  that  the  question  of  the  statute  is  suspended  while 
the  enforcement  of  the  cause  of  action  is  enjoined.35  And  an 
equivalent  rule  prevails  in  Tennessee.36  But  in  New  York  the 
saving  of  the  rights  of  parties  under  the  statute  of  limitations 
when  they  are  stayed  by  injunction  is  held  to  apply  only  to  cases 
governed  by  the  statute  and  has  no  application  to  a  limitation 
prescribed  by  contract.37  And  an  injunction  staying  the  com- 
mencement of  an  action  does  not  ipso  facto  operate  to  suspend  the 
running  of  the  statute  or  relieve  a  party  from  its  operation.38 


32.  X.  Y.  Code  Civ.  Pro.  §§  406, 
1255.  See  Van  Gelder  v.  Van  Gelder, 
26  Hun   (X.  Y.),  356. 

33.  X.  Y.  Code  Civ.  Pro.  1382. 
See  Underwood  v.  Green,  56  X.  Y. 
247.  In  Minnesota  there  is  a  similar 
statutory  provision  where  execution 
is  stayed  by  injunction.  Wakefield  v. 
Brown,  38  Minn.  361. 

34.  Ansonia  Brass,  etc.,  Co.  v. 
Conner,  103  X.  Y.  502,  9  X.  E.  238. 
See,  also,  Georgia  R.  &  B.  Co.  v. 
Wright,  124  Ga.  596,  53  S.  E.  251. 

35.  Little  v.  Price,  1  Md.  Ch.  182; 
Tishimingo   Sav.   Inst.   v.   Buchanan, 


60  Miss.  496.  The  Xew  York  city 
charter  in  prohibiting  the  bringing 
of  a  suit  against  the  city  until  after 
30  days  from  the  presentation  of 
claim  suspended  the  running  of  the 
Statute  of  Limitations  during  that 
time.  Brehm  v.  Mayor,  etc.,  of  X. 
Y.,  104  X.  Y.  186,  10  X.  E.  158. 

36.  Wilhoit   v.    Castell,   3    Baxter, 
419. 

37.  Wilkinson  v.  First  Xat.  Bank, 
72  X.  Y.  499. 

38.  Barker   v.   Millard,    16   Wend. 
572. 


93 


Jurisdiction. 


CHAPTER    II. 

Jurisdiction. 

Section  47.  Assuming  injunctive  jurisdiction. 

47a.  Same  subject — Where  no  power  to  enforce. 

47b.  Jurisdiction  limited  by  Constitution  or  statute. 

48.  Declining  jurisdiction  where  the  Legislature  should  act. 

49.  Equity  jurisdiction  not  extended  by  combining  law  and  equity. 

50.  Injunctive  jurisdiction  where  property  rights  not  threatened. 
61.  Ousting  of  jurisdiction. 

51a.  Same  subject — Effect  of  completion  of  act  sought  to  be  enjoined. 
61b.  Prohibition  to  prevent  erroneous  exercise  of  jurisdiction  will  not 
lie. 

52.  Objection  to  jurisdiction,  when  to  be  made. 

53.  No  injunctive  jurisdiction  where  controversy  submitted. 

54.  Limited  injunctive  jurisdiction  of  public  officers. 

55.  Same  subject. 

56.  No  State  jurisdiction  of  patent  infringements. 

57.  Peculiar  jurisdiction  of  trusts,  waste,  etc. 

58.  No  injunctive  jurisdiction  of  criminal  matters. 

59.  Same  subject. 

60.  Same  subject — Illegal  ordinance  or  statute. 
60a.  Same  subject — Qualification  of  rule. 

61.  Injunctive  jurisdiction  of  courts  of  last  resort. 

62.  Same  subject. 

63.  Of  Supreme  Court  of  New  York. 

64.  Of  Superior  and  City  Courts. 

65.  Of  Circuit  Courts. 

66.  Of  District  Courts. 
66a.  Of  County  Courts. 

67.  Of  Courts  of  Common  Pleas. 

68.  Of  Probate  Courts — Of  Surrogates. 
68a.  Of  court  commissioners. 

68b.  Statutory  provisions  of  a  general  character. 

69.  Conditional  and  auxiliary  jurisdiction. 

70.  Jurisdiction  in  vacation. 

71.  Jurisdiction  at  chambers. 

72.  Trial  court's  jurisdiction  pending  appeal. 

73.  Jurisdiction  of  the  High  Court  of  Justice. 

74.  Jurisdiction  of  Quebec  courts — Of  British  Columbia  courts. 

75.  Extra-territorial  jurisdiction. 

94 


Jurisdiction.  §  47 

Section  75a.  Same  subject — Jurisdiction    dependent   on    location   of   subject 
matter. 

76.  Same  subject — Receivers. 

77.  Same  subject — Exceptions. 

77a.  Same  subject — Exceptions  continued. 

78.  Same  subject  illustrated  in  Alabama. 

79.  Same  subject — Interstate  comity. 

80.  Same  subject — English  chancery. 

81.  Comity  of  New  York  chancery. 

82.  Jurisdiction  of  non-resident's  personalty. 

83.  Non-interference  with  courts  of  concurrent  jurisdiction. 

84.  State  courts  versus  Federal. 

85.  Same  subject — Court  first  acquiring  jurisdiction. 

86.  Federal  comity  towards  State  courts. 

87.  Federal  jurisdiction  independent  of  State  laws  and  practice. 

88.  Federal  injunction  of  proceedings  in  State  courts. 

89.  Same  subject — Where  suits  not  begun  in  State  court. 

90.  Federal  jurisdiction  to  enjoin  national  banks. 

91.  Jurisdiction  of  patent  infringements. 

92.  Exclusive  Federal  jurisdiction  of  equitable  maritime  cases. 

93.  Ancillary  jurisdiction  of  the  Federal  courts. 

94.  Jurisdiction  according  to  value  in  dispute. 

95.  Injunctive  jurisdiction  of  Territorial  courts. 

96.  Jurisdiction  of  perpetual  injunctions. 

Section  47.  Assuming  injunctive  jurisdiction. — A  judge  assumes 
jurisdiction  of  an  injunction  and  of  the  suit  in  which  it  is  granted 
as  soon  as,  on  the  presentation  to  him  of  the  proper  pleadings  and 
papers,  he  signs  and  delivers  the  injunction  order;1  but  the  mere 
bringing  of  an  action  in  which  relief  by  injunction  is  asked  for 
does  not  confer  jurisdiction  by  injunction  until  the  right  to  an 
injunction  is  at  least  preliminarily  established.2  A  judge  has  no 
jurisdiction  of  an  injunction  cause  in  which  he  is  interested  and 
can  make  no  order  therein  except  to  transfer  it  to  another  circuit 
where  the  judge  is  qualified  to  try  the  cause;  and  if  the  latter 

1.  Daly  v.  Amberg,  126  N.  Y.  490,  2.  Metropolitan  El.  R.  Co.  v.  Man- 

495,  27  N.  E.  1038,  per  O'Brien,  J.:  hattan  R.  Co.,  11  Daly  (N.  Y.),  373. 

"Ihe   presentation   of  the   summons,  In    an    action    where    the    sole    relief 

complaint,  affidavit  and   undertaking  sought    is    injunctive    the    court    ac- 

to  the  judge  conferred  on  him  under  quires  jurisdiction  by  commencement 

the  statute,  jurisdiction  to  make  the  of    the    action    even    though    at    that 

order,  and  it  was  valid  from  the  mo-  time  plaintiff  has  suffered  no  damage, 

ment  he  signed  and  delivered  it."  Patterson  v.  More,  14  W.  Dig.  561. 

95 


§47 


Jurisdiction. 


judge  is  also  disqualified  he  cannot  confer  jurisdiction  upon  the 
judge  of  another  circuit  but  must  order  the  papers  to  be  returned 
to  the  court  from  which  it  was  sent.3  Again,  there  must  be  some 
special  ground  of  jurisdiction  to  authorize  the  remedy  by  injunc- 
tion; it  is  not  enough  that  a  violation  of  a  naked  legal  right  of 
property  is  threatened  ;4  but  there  must  be  an  allegation  of  facts 
showing  that  the  act  complained  of  will  cause  irreparable  injury 
or  multiplicity  of  suits  or  that  plaintiff  has  no  adequate  remedy 
at  law.5    While  a  court  of  competent  jurisdiction  may  enjoin  the 


3.  Swepson  v.  Call,  13  Fla.  337. 

4.  McHenry  v.  Jewett,  90  N.  Y.  58. 

5.  Troy,  etc.,  R.  Co.  v.  Boston,  etc., 
R.  Co.,  86  N.  Y.  107,  where  it  was 
held  that  as  plaintiff's  rights  so  far 
as  infringed  were  illegal  and  the  in- 
jury not  shown  to  be  remediless,  it 
must  resort  to  an  action  at  law,  and 
the  judgment  awarding  an  injunction 
was  reversed.  Danforth,  J.,  said :  "  I 
have  examined  all  the  cases  cited  by 
the  learned  and  zealous  counsel  for 
the  plaintiff  to  sustain  the  judgment. 
They  are  as  follows:  Mew  York  City 
v.  Mapes,  6  Johns.  Ch.  46.  The  plain- 
tiff claimeu  that  it  was  about  to  take 
certain  lands  for  the  opening  of  a 
street;  and  although  proceedings  had 
been  instituted  with  notice  to  the  de- 
fendants, they  were  about  to  erect 
upon  the  land  a  block  of  buildings, 
with  a  view  of  defeating  the  proposed 
improvement,  by  adding  the  value  of 
the  buildings  to  the  expense  thereof, 
and  prayed  an  injunction  against  it. 
The  prayer  was  denied,  because  the 
plaintiff  had  shown  no  right  or  title, 
and  raised  no  equity  which  could  be 
a  ground  for  an  injunction.  In  the 
N.  Y.  Print.  Estab.  v.  Fitch,  1  Paig, 
97,  the  injunction  asked  for  was  de- 
nied, the  court  recognizing  the  gen- 
eral rule  laid  down  in  Livingston  v. 
Livingston,    6    Johns.    Ch.    497,    that 


while  an  injunction  may  issue  to 
restrain  trespasses,  even  when  there 
is  a  legal  remedy  for  the  intrusion, 
there  must  be  something  particular 
in  the  case  to  bring  the  injury  under 
the  head  of  quieting  the  possession 
or  to  make  out  a  case  of  irreparable 
mischief,  or  the  value  of  the  inherit- 
ance mut  be  put  in  jeopardy  by  the 
continuance  of  the  trespass;  "  but 
held  the  plaintiff's  case  not  within  it. 
It  should  also  be  observed  that  in 
Livingston  v.  Livingston,  the  plain- 
tiff's rights  had  been  established  in 
an  action  at  law.  In  Akrill  v.  Sel- 
den,  1  Barb.  316,  an  injunction  was 
denied  because  it  was  considered  well 
settled  in  this  State  that  the  court 
would  not  interfere  to  restrain  a 
mere  trespass,  when  the  injury  is  not 
irreparable,  and  destructive  of  the 
plaintiff's  estate,  but  is  susceptible 
of  pecuniary  compensation,  the  court 
saying,  in  language  applicable  in 
both  its  branches  to  the  present  case, 
"  Unless  the  injury  will  be  irrepar- 
able, the  court  will  leave  the  party 
to  his  remedy  at  law.  There  is  the 
same  reason  why  the  court  should 
not  interfere  by  restoring  the  party 
to  possession;  that  is,  that  he  has 
an  adequate  remedy  at  law.  Hart  v. 
The  Mayor,  3  Paige,  214,  is  to  the 
same  effect.     In  all  these  cases  the 


96 


Jurisdiction. 


§47 


bringing  of  a  multiplicity  of  unjust  and  vexatious  suits  before  a 
justice  of  the  peace  when  the  aggregate  amount  or  any  other  fact 
will  preclude  the  right  to  have  all  of  them  consolidated  into  one 
suit;6  yet  it  is  improper  for  the  court  to  exercise  its  jurisdiction 


remedy  by  injunction  was  denied.    In 
Niagara    Falls    Bridge    Co.   v.    Great 
Western  R.  Co.,  39  Barb.  224,  it  was 
granted    to    enforce    an     agreement, 
which,  as  the  court  said,  made  rela- 
tion between  the  parties  of  the  na- 
ture of  a  trust.     These  cases  are  fol- 
lowed by  the  text  writers  also  cited 
by  the  respondent,  viz.:     Story's  Eq. 
Jur.,  §§  925,  929,  930,  and  Willard, 
writing  on  the  same  subject,  p.  381. 
Each  lays  down  the  general  doctrine 
that  equity   interferes   by   injunction 
in  order  to  prevent  irreparable  mis- 
chief, or  to  suppress  a  multiplicity  of 
suits  and  vexatious  litigations.  Other 
cases   are    cited   to   show    that   eject- 
ment will  lie  to  recover  possession  of 
a  street.    Carpenter  v.  Oswego  R.  Co., 
24  N.   Y.   655;    Wager   v.   Troy,  etc., 
R.  Co.,  25  N.  Y.  526;   and  Williams 
v.  N.  Y.  Central  R.  Co.,  16  N.  Y.  97, 
where    damages   and    equitable    relief 
were  both  sought,  and  to  these  may 
be   added    the    same    case    under    the 
name  of  Henderson  v.  N.  Y.  Central 
R.  Co.,  78  N.  Y.  423,  where  the  re- 
lief   sought   was    given.      That    eject- 
ment will  lie  in  such  a  case  might  be 
conceded;     but     the     Williams     Case 
seems  to  have  no  application  for  the 
facts   here   are    not  sufficient   to    lay 
the  foundation  for  equitable  relief,  or 
to  take  the  case  from  out  the  general 
rule    above    referred    to.     They    show 
that  interference  by  injunction  is  not 
the  fit  and   appropriate   mode  of   re- 
dress under  the  circumstances  of  the 
case-     Story,   Eq.   Jur.    §   959.     And 


although  the  form  of  actions  and 
suits  and  the  distinction  between  ac- 
tions at  law  and  suits  in  equity  has 
been  abolished,  a  party  to  entitle 
himself  to  the  equitable  remedy  by 
injunction  •  must  still  make  such  a 
case  as  would  while  the  distinction 
existed  have  made  an  equitable  cause 
of  action.  This  is  well  settled.  N. 
Y.  Life  Ins.  Co.  v.  Supervisors,  4 
Duer,  192;  Pumpelly  v.  Owego,  45 
How.  Pr.  259;  Heywood  v.  Buffalo, 
14  N.  Y.  534;  Albany,  etc.,  R.  Co.  v. 
Brownell,  24  N.  Y.  348.  Such  a  case 
has  not  been  made  here.  The  com- 
plaint and  proof  is  of  a  trespass,  but 
there  is  neither  allegation  nor  proof 
of  facts  showing  the  injury  to  be 
irreparable.  There  is  no  allegation 
showing  multiplicity  of  suits  pending 
or  expected  and  while  there  is  a  find- 
ing by  the  court  that  a  remedy  can 
only  be  partially  obtained  by  a  great 
multiplicity  of  actions  at  law  there 
is  no  evidence  that  any  such  action 
has  been  tried  or  even  brought.  This 
the  general  rule  requires  and  we  find 
nothing  in  the  case  to  make  it  an 
exception."  Judgment  reversed  and 
the  complaint  dismissed.  As  to  the 
distinction  between  want  of  jurisdic- 
tion and  want  of  equity,  see  Nat. 
Park  Bank  v.  Goddard,  131  N.  Y. 
494,  30  N.  E.  566. 

6.  Galveston    R.    Co.    v.    Dowe,    70 
Tex.  10,  7  S.  W.  368. 

As  to  multiplicity  of  raits,  see 
chap.  XVIII  herein. 


97 


§§  47a,  47b  Jurisdiction. 

by  injunction  when  the  right  of  consolidation  exists  so  as  to  give 
the  further  right  and  remedy  by  appeal.7 

§  47a.  Same  subject ;  where  no  power  to  enforce. — Where  the 
court  has  no  jurisdiction  to  enforce  an  injunction  it  should  not  be 
granted.  So  in  the  case  of  a  foreign  corporation  it  was  held  that 
an  injunction  relating  to  acts  connected  with  the  internal  manage- 
ment of  the  corporation  at  its  home  office  in  another  State  would 
not  be  granted  as  the  court  would  have  no  power  to  enforce  it  if 
the  corporation  refused  to  obey.8  But  in  a  case  in  Maryland  it  is 
decided  that  the  courts  of  that  State  have  jurisdiction  to  enjoin 
corporations  owing  their  corporate  existence  in  part  to  that  State 
and  exercising  their  franchises  therein,  from  expending  their  funds 
for  any  other  than  corporate  purposes  anywhere.9 

§  47b.  Jurisdiction  limited  by  constitution  or  statute. — A 
court  or  judge  in  granting  an  injunction  is  limited  in  juris- 
diction by  the  terms  of  the  constitution  or  statute  conferring  the 
power.10  A  court  of  equity  cannot  draw  to  its  general  jurisdiction 
a  question  which  has  been  expressly  remitted  by  statute  to  another 
competent  tribunal,  unless  under  very  exceptional  circumstances.11 
So  in  New  York  a  court  of  equity  has  no  inherent  absolute  power 
to  grant  interlocutory  injunctions  and  authority  for  power  to  grant 

7.  Gulf  C.  &  S.  F.  Ry.  Co.  v.  any  action  under  the  agreement  in 
Bacon,  3  Tex.  Civ.  A.  55,  21  S.  W.  question  obstructed  the  statutory 
783.  remedy  and  drew  to  itself  a  jurisdic- 

8.  Taylor  v.  Mutual  Reserve  Fund  tion  which  the  statute  had  conferred 
L.  A.,  97  Va.  60,  33  S.  E.  385,  45  on  the  bishop  and  the  Supreme  Court, 
L.  R.  A.  621.  and  therefore  the  temporary  injunc- 

9.  State  v.  Northern  Cent.  Ry.  Co.,  tion  was  dissolved.  The  Supreme 
18  Md.   193.  Court  of  the  United  States  sometimes 

10.  Jones  v.  City  of  Little  Rock,  exercises  the  right,  ex  proprio  motu, 
25  Ark.  284;  Smith  v.  Ellis,  29  Md.  of  preventing  matters  of  purely  legal 
422.  See  Cooper  v.  City  of  Mineral  cognizance  from  being  drawn  into 
Point,  34  Wis.   181.  chancery     jurisdiction.         Lewis     v. 

11.  Thus  in  MacLaury  v.  Hart,  121  Cocks,  23  Wall.  (U.  S.)  466,  23  L. 
N.  Y.  636,  the  Court  of  Appeals  held  Ed.  70;  Oelrichs  v.  Spain,  15  Wall, 
that  tue  Common  Pleas  by  enjoining  ( U.  S.)    211,  21  L.  Ed.  43. 

98 


Jurisdiction.  §  47b 

them  must  be  found  in  the  Code  of  Civil  Procedure.12  And  in  an 
earlier  case  in  New  York  it  is  declared  that  an  injunction  granted 
by  order  as  provided  for  in  the  Code  can  only  be  awarded  in  the 
cases  and  in  the  manner  specifically  prescribed,  and  is  impliedly 
forbidden  in  any  others.13  And  where  by  statute  or  Code  power 
is  conferred  upon  a  court  of  equity,  in  proper  cases,  to  issue  man- 
datory injunctions,  when  the  exercise  of  such  power  exceeds  the 
limit,  it  is  not  a  mere  error,  but  void  as  without  jurisdiction.1* 
And  it  has  been  decided  that  the  provision  of  the  New  York  Code 
of  Civil  Procedure,  §  606,  giving  the  county  judge  power  to  grant 
an  injunction  "  except  where  it  is  otherwise  specially  prescribed 
by  law  "  shows  a  design  to  limit  the  power  of  this  court  to  grant 
injunctions  within  a  narrower  compass  than  other  injunctions  are 
granted  and  to  limit  the  power  to  the  court  itself  or  an  actual 
justice  thereof,  as  distinguished  from  an  officer  who  might,  under 
other  provisions  of  law,  perform  the  duties  of  a  justice  of  the 
Supreme  Court.15  So  legislation  conferring  power  upon  a  judge 
of  a  certain  court  to  grant  an  injunction  is  held  not  to  bestow  like 
power  upon  the  court.16  And  in  Iowa  it  is  decided  in  an  early  case 
that  the  Supreme  Court  is  not  authorized  to  grant  injunction  upon 
original  petition  but  that  each  judge  of  that  court  in  his  separate 
capacity  is  empowered  to  grant  injunctions.17     And  where  the 


12.  Bachman  v.  Harrington,  184  See  Wooley  v.  Georgia  L.  &  T.  Co., 
N.  Y.  458,  77  N.  E.  657,  rev'g  108  102  Ga.  591,  29  S.  E.  119,  holding 
App.  Div.  357,  and  citing  Fellows  v.  that  want  of  jurisdiction  may  be 
Haermans,  13  Abb.  Prac.    (N.  S.)   9;  shown  by  way  of  demurrer. 

Spears   v.    Matthews,   66   N.   Y.    128;  15.  People    v.    Windholz,    68    App. 

Erie   Ry.    Co.    v.    Ramsey,    45   N.    Y.  Div.    (N.    Y.)    552.    74    N.   Y.    Supp. 

637;     People    v.    Randall,    73    N.    Y.  241,  holding  that  the  injunction  pro- 

416;    Gardner  v.  Gardner,   87   N.   Y.  vided  for  by  §  10  of  the  Agricultural 

18;    Jackson    v.    Bunnell,    113    N.   Y.  Law    (Laws   of    1893,   ch.   338),   was 

216,    21    N.    E.    79;    People    v.    Van  within  the  exception  of  §  606,  Code 

Buren,  136  N.  Y.  252,  32  N.  E.  775.  Civ.  Proc. 

13.  Jackson  v.  Bunnell,  113  N.  Y.  16.  L'ummings  v.  Des  Moines,  W. 
216,  219,  21  N.  E.  216,  citing  Fellows  &  S.  R.  R.  Co.,  36  Iowa  173.  See 
v.  Heermans,  13  Abb.  Pr.    (N.  S.)   9.  also  Hall  v.  O'Brien,  5  111.  410;  Reed 

14.  Bachman  v.  Harrington,  184  v.  Murphy,  2  G.  Greene  (Iowa)  568. 
N.  Y.  458,  77  N.  E.  657,  rev'g  108  17.  Reed  v.  Murphy,  2  G.  Green* 
App.  Div.  357.  (Iowa)   568. 

99 


§48 


Jurisdiction. 


power  is  plainly  conferred  upon  the  court  sitting  in  banc  it  can 
only  be  so  exercised  and  one  judge  of  the  court  cannot  grant  an 
injunction.18  Again,  the  power  of  a  court  commissioner  to  grant 
an  injunction  must  be  exercised  within  the  limits  of  the  provision 
conferring  such  power.19 


§  48.  Declining  jurisdiction  where  the  Legislature  should  act. 
— Courts  of  equity  will  decline  to  exercise  jurisdiction  by  injunc- 
tion where  the  questions  involved  are  wholly  new  and  are  so  broad 
and  deep  and  difficult  that  they  cannot  be  measured  by  any  existing 
modes  of  equitable  relief.  Thus  though  the  owner  of  the  surface 
of  land  who  has  granted  to  another  the  coal  under  his  land  has 
the  legal  right  to  reach  in  some  way  the  strata  underlying  the 
coal,  yet  the  regulation  of  such  access  to  the  underlying  strata 
involves  too  many  questions  affecting  rights  of  property  and  novel 
|  rights  of  way  to  be  settled  by  injunction.  The  matter  is  legis- 
lative rather  than  judicial  and  is  to  be  treated  as  affecting  the 
public  as  well  as  individuals.20 


18.  Riley  v.  Ellmaker,  6  Whart. 
(Pa.)    545. 

19.  See  Reed  v.  Jones,  6  Wis.  680. 

20.  Chartiers  Black  Rock  Coal  Co. 
v.  Mellon,  152  Pa.  St.  286,  25  Atl. 
597,  per  Paxson,  C.  J. :  "  This  is  a 
new  question  and  one  that  is  full  of 
difficulty.  The  discovery  of  new 
sources  of  wealth,  and  the  springing 
up  of  new  industries  which  were 
never  dreamed  of  half  a  century  ago 
sometimes  present  questions  to  which 
it  is  difficult  to  apply  the  law,  as  it 
has  heretofore  existed.  .  .  Mining 
rights  are  peculiar  and  exist  from 
necessity,  and  the  necessity  must  be 
recognized,  and  the  rights  of  mine 
and  land  owners  adjusted  and  pro- 
tected accordingly.  We  have  an  il- 
lustration of  this  in  the  Pennsylva- 
nia Coal  Co.  v.  Sanderson,  113  Pa. 
St.   126,  6  Atl.  453.     The  mining  of 


coal  and  other  minerals  is  constantly 
developing  new  questions.  Formerly 
a  man  who  owned  a  surface,  owned 
it  to  the  center  of  the  earth.  Now 
the  surface  of  the  land  may  be  sepa- 
rated from  the  different  strata  un- 
derneath it,  and  there  may  be  as 
many  different  owners  as  there  are 
strata.  Lillibridge  v.  Coal  Company, 
143  Pa.  St.  293,  22  Atl.  1035.  .  . 
While  the  right  of  the  surface  owner 
to  reach  in  some  way  his  underlying 
strata  is  conceded,  it  involves  too 
many  questions  affecting  the  rights 
of  property  and  of  injury  to  the  un- 
derlying strata  to  be  settled  by  the 
judiciary.  It  is  a  legislative  rather 
than  a  judicial  question.  .  .  All  this 
requires  an  amount  of  legal  machin- 
ery that  a  court  of  equity  cannot 
supply,  however  wide  its  jurisdiction 
and  plastic  its  process.    We  find  our- 


100 


Jurisdiction.  §§  49,  50 

§  49.  Equity  jurisdiction  not  extended  by  combining  law  and 
equity — Though  in  the  State  of  Xew  York  the  distinction  between 
actions  at  law  and  suits  in  equity  has  been  abolished  by  the  Code, 
a  party  to  entitle  himself  to  the  equitable  remedy  by  injunction 
must  still  make  such  a  case  as  would,  while  the  distinction  existed, 
have  made  an  equitable  cause  of  action.21  And  the  same  rule  has 
been  applied  to  the  Georgia  Superior  Court  since  law  and  equity 
were  combined  in  that  court.22  And  provisions  of  general  and  codi- 
fying statutes  in  relation  to  injunctions  are  to  be  regarded  as 
declaratory  of  the  existing  law  of  injunctions  unless  the  intention 
thereby  to  change  such  law  clearly  appears.  Thus  it  is  held  that 
section  291  of  the  Indiana  statute  of  1852,  which  provides  that 
"  where  a  proper  case  is  made,  the  nuisance  may  be  enjoined  and 
abated  and  damages  recovered  therefor,"  did  not  create  new  rights 
nor  prescribe  a  new  remedy  and  that  such  remedy  by  injunction 
existed  in  Indiana  long  before  the  Code  of  1852  was  enacted.23 

§  50.  Injunctive  jurisdiction  where  property  rights  not  threat- 
ened.— It  is  a  general  rule  that  the  wrongful  acts  for  the  preven- 
tion of  which  injunctions  will  be  granted  are  those  which  affect 

selves  upon  a  new  road  without  chart  it  was  held  that  the  equitable  juris- 

or  compass  to  guide  us,  and  we  pro-  diction    of   the    New   York    courts    is 

pose  to  move  slowly.     The  appellants  not  extended  by  their  union  of  legal 

have    appealed   to   us   as   chancellors,  and  equitable  powers  and  that  when 

and  even  if  we  concede  their  right  to  a    perpetual    injunction    is   demanded 

be  clear,   it  does  not  follow  that  as  by    the    complaint    the    right    of    the 

chancellors   we   will   enforce   it.      The  plaintiff   to  such  relief  must  still  be 

effect  of  doing  so  would  be  to   leave  determined  by  the  rules  of  law  which 

the  owner  of  the  surface  at  the  ab-  were    in    force    when    the    Code    was 

solute  mercy  of  the  owner  of  the  coal.  enacted.       See,     also,      Pumpelly     v. 

It   is   true   he   can    buy   the   coal    of  Owego.    45    How.    Pr.     (N.    Y.)    259, 

the  latter  but  only  on  terms  dictated  260;    Heywood  v.   Buffalo,    14  N.   Y. 

by  the  owner.     To  grant  the   injunc-  534,    540;    Albany,    etc.,    R.    Co.    v. 

tion    as    claimed    by    the    appellant  Brownell,  24  N.  Y.  348. 

would  be  to  destroy  the  estate  of  the  22.  Broomhead    v.    Grant,    83    Ga. 

surface  owner  in  the  minerals  below  451,  10  S.  E.  116. 

the  coal."  23.  Indianapolis     Water     Co.     v. 

21.  Thus  in  N.  Y.  Life  Ins.  Co.  v.  American    Strawboard    Co.,    53    Fed. 

Supervisors,    4    Duer    (N.    Y.),    192,  970. 

101 


8  50 


Jurisdiction. 


property  or  its  healthful  and  beneficial  use,24  and  that  the  injury 
to  a  man's  reputation  will  not  be  averted  by  injunction  if  wholly 
disconnected  with  any  property  right.25  The  application  of  this 
rule  would  preclude  the  granting  of  an  injunction  to  restrain  a 
libel.26  But  while  this  rule  is  in  its  general  sense  true  and  ordi- 
narily a  mere  abstract  right  will  not  be  protected  by  injunction,27 
as,  for  instance,  the  right  of  a  citizen  to  have  a  public  nuisance 
abated  where  he  is  not  specially  injured  by  it;28  and  the  operation 
of  a  doubtful  law  will  not  be  enjoined  until  it  is  put  in  issue  in 
some  actual  case;29  yet  the  jurisdiction  of  equity  to  grant  an  in- 
junction is  not  entirely  confined  to  cases  in  which  damages  could 


24.  Mead  v.  Stirling,  62  Conn.  586, 
596,  27  Atl.  591,  23  L.  R.  A.  227. 

25.  World's  Columbian  Exposition 
v.  United  States,  56  Fed.  654,  667; 
Mead  v.  Stirling.  62  Conn.  586,  27 
Atl.  591,  23  L.  R.  A.  227. 

26.  United  States. — Palmer  v. 
Travers,  20  Fed.  501. 

Georgia. — Singer  Mfg.  Co.  v.  Do- 
mestic Sew.  Mach.  Co.,  40  Ga.  70, 
15  Am.  Rep.  674. 

Louisiana. — State  v.  Judge  of  Civil 
District  Court,  34  La.  Ann.  741. 

Missouri. — Life  Ass'n  of  America 
V.  Boogher,  3  Mo.  App.  173. 

Neio  York. — Brandretb  v.  Lance,  8 
Paige  24,  34  Ann.  Dec.  368;  New 
York  Juvenile  Guardian  Soc.  v. 
Roosevelt,  7  Daly,  188. 

Ohio.— Dopp  v.  Doll,  9  Ohio  Dec. 
428;  Riggs  v.  Cincinnati  Waiters' 
Alliance,  5  Ohio  N.  P.  386. 

But  see  Bell  v.  Singer  Mfg.  Co.,  65 
Ga.  452. 

27.  A  social  and  fraternal 
right  will  not  be  protected.  Clark  v. 
Wallace.  20  Ky.  Law  Rep.  154,  45  S, 
W.  504.  See  Wellenvors  v.  Grand 
Lodge  20  Ky.  Law  Rep.  713,  45  S.  W. 
360,  40  L.  R.  A.  488. 

Offending  religious  feelings. 
An  injunction  will  not  be  issued  to 


prevent  a  company  from  offending 
the  religious  feelings  of  church 
members  by  running  cars  on  Sun- 
day. Sparhawk  v.  Union,  etc.,  R. 
Co.,   54  Pa.  St.  401. 

An  injury  to  a  navigable 
stream  will  not  be  enjoined  at  the 
instance  of  one  who  is  not  engaged 
in  navigating  it.  Spooner  v.  Mc- 
Connell,   1    McLean,   337. 

The  harboring  of  a  married 
woman  by  her  father,  or  even  a 
stranger,  from  humane  motives 
merely,  does  not  entitle  the  husband 
to  an  injunction.  Campbell  v.  Car- 
ter, 3  Daly,  165. 

28.  Adler  v.  Metropolitan  El.  R. 
Co.,  138  N.  Y.  173,  33  N.  E.  935.  And 
see  §  13,  ante. 

As  to  nuisances,  see  chap. 
XXXVIII  herein. 

29.  The  threatened  putting  in 
force  of  the  stock  law  in  a  cer- 
tain militia  district,  in  pursuance 
of  a  declared  result  of  a  local  elec- 
tion, will  not  be  enjoined  on  the 
ground  that  such  election  is  void  in 
the  absence  of  any  statutory  provi- 
sion for  attacking  the  validity  of  the 
election,  until  some  actual  case  arises 
putting  its  validity  in  issue.  Nelms 
v.  Pinson,  92  Ga.  441,  17  S.  E.  350. 


102 


Jurisdiction. 


§50 


be  recovered  at  law.  The  Court  of  Chancery  always  had  jurisdic- 
tion to  prevent  what  that  court  considered  a  wrong  independent  of 
any  question  as  to  the  right  at  law.30  So  a  stranger  may  be 
enjoined  from  invading  the  right  of  privacy  which  attaches  to  a 
person  while  living  and  to  his  memory  when  dead;  for  example 
may  be  enjoined  from  erecting  a  statue  to  a  deceased  person  against 
the  wishes  of  his  relatives,  though  in  such  a  case  the  relatives  could 
recover  no  damages.31 


30.  Schuyler  v.  Curtis,  27  Abb.  N. 
C.  387,  40  N.  Y.  St.  Rep.  289, 
aff'd  64  Hun,  594.  This  was  an  ac- 
tion to  restrain  a  certain  association 
from  placing  a  life  statue  of  Mrs. 
Schuyler,  after  her  death,  on  public 
exhibition  at  the  Columbian  Exposi- 
tion at  Chicago  in  1893.  In  sustain- 
ing the  injunction  at  General  term, 
Van  Brunt,  P.  J.,  said:  "The  fact 
that  the  plaintiff  has  suffered  no 
pecuniary  damage  is  no  answer  to 
the  application  because  one  of  the 
most  important  departments  in  the 
jurisdiction  of  the  courts  of  equity 
is  the  prevention  of  wrongs  which 
would  be  otherwise  irreparable  be- 
cause courts  of  law  cannot  afford  any 
remedy  in  damages."  The  pretension 
that  an  injunction  can  be  granted 
only  in  a  case  where  damages  can  be 
recovered  in  an  action  at  law  was 
thus  disposed  of  in  Pollard  v.  Photo- 
graphic Co.,  40  Ch.  D.  345:  "The 
right  to  grant  an  injunction  does  not 
depend  in  any  way  on  the  existence 
of  property  as  alleged ;  nor  is  it 
worth  while  to  consider  carefully  the 
grounds  upon  which  the  old  Court  of 
Chancery  used  to  interfere.  But  it 
is  quite  clear  that  independently  of 
any  question  as  to  the  right  at  law. 
the  Court  of  Chancery  always  had 
an  original  and  independent  jurisdic- 
tion to  prevent  what  that  court  con- 
sidered    and     treated     as     a     wrong 


whether  arising  from  a  violation  of 
an  unquestionable  right  or  from 
breach  of  confidence  or  contract  as 
pointed  out  by  Lord  Cottenham  in 
Prince  Albert  v.  Strange,  1  McN.  & 
G.  25."  The  failure  or  inability  to 
prove  pecuniary  damages  does  not 
take  away  from  a  court  of  equity 
the  power  to  redress  the  wrong  and 
prevent  a  repetition  of  the  injury. 
As  said  in  McKeon  v.  See,  51  N.  Y. 
300,  affg  4  Robt.  449:  "The  sup- 
pression of  oppressive  and  intermin- 
able litigation  and  the  prevention  of 
multiplicity  of  suits  equally  with 
protection  against  irreparable  mis- 
chief, form  grounds  of  equitable  in- 
terference." Followed  in  Pach  v. 
Geoff roy,  19  N.  Y.  Supp.  583. 

31.  Schuyler  v.  Curtis.  64  Hun 
(N.  Y.),  594,  19  N.  Y.  Supp.  264. 
where  Van  Brunt,  J.,  said:  "It  is 
further  urged  that  the  plaintiff  has 
no  standing  in  court  and  that  the 
fancied  injury  complained  of,  if  any 
such  injury  can  in  any  way  be  dis 
covered,  is  certainly  not  such  an  in- 
jury as  the  court  will  grant  an  in- 
junction to  prevent,  because  it  is  not 
an  injury  to  his  person,  to  his  estate, 
or  to  his  good  name,  and  is  not  a 
violation  of  his  privacy  or  seclusion, 
and  because  the  plaintiff  stands  in 
the  same  relation  to  the  defendants 
and  to  their  project  as  does  all  the 
rest   of   the   world   and    in    no  other 


103 


§51 


Jurisdiction. 


§  51.  Ousting  of  jurisdiction. — If  at  the  filing  of  a  bill  for 
an  injunction  the  court  has  jurisdiction  thereof  such  jurisdiction 
•will  not  be  ousted  by  the  fact  that  pending  the  suit  the  right  to  a 
permanent  injunction  is  lost,  as  for  example  where  a  patent  which 
was  to  be  protected  expires  pendente  lite.22  The  refusal  of  a  court 
or  judge  to  grant  an  injunction  docs  not  exclude  another  co-or- 
dinate court  or  judge  from  jurisdiction  but  in  such  a  case  the 
granting  of  the  injunction  by  a  second  judge  is  a  delicate  matter 
which  sometimes  leads  to  undignified  retaliation.33    Where  a  court 


relation.  The  result  of  this  claim 
is  that  when  a  person  is  dead  there 
is  no  power  in  any  court  to  protect 
his  memory,  no  matter  how  outrage- 
ously it  may  be  insulted.  The  feel- 
ings of  relatives  and  friends  may  be 
outraged,  and  the  memory  of  de- 
ceased degraded  with  impunity  by 
any  person  who  may  desire  thus  to 
affect  the  living.  It  seems  to  us  that 
such  a  proposition  carries  its  own 
refutation  with  its  statement.  It 
cannot  be  that  by  death  all  protec- 
tion to  the  reputation  of  the  dead 
and  the  feelings  of  the  living,  in  con- 
nection with  the  dead,  has  been  abso- 
lutely lost.  The  memory  of  the  de- 
ceased belongs  to  the  surviving  rela- 
tives and  friends,  and  such  relatives 
have  a  right  to  see  that  that  which 
would  not  have  been  permitted  in  re- 
spect to  the  deceased  when  living 
shall  not  be  done  with  impunity  when 
the  subject  has  become  incapable  of 
protecting  himself.  It  is  undoubt- 
edly true  that  cases  of  the  character 
now  before  the  court  are  not  to  be 
found  in  the  books.  But  it  is  prob- 
ably the  first  time  in  the  history  of 
the  world  that  the  audacious  claim 
which  is  here  presented  has  ever  been 
advanced.  If  it  had,  we  have  no 
doubt  the  books  would  have  contained 
a    record    in    connection    with    the 


same."  See,  also,  an  article  entitled 
"The  Right  to  Privacy"  in  The 
Hartford  Law  Review  of  Dec,  1800, 
Vol.  4,  No.  5;  also  an  article  on 
"  The  Rights  of  the  Citizen  to  his 
Reputation  "  in  Scribner's  Magazine, 
July,   1S90. 

32.  Brooks  v.  Miller.  28  Fed.  615; 
but  the  bill  should  not  be  sustained 
if  the  bill  was  filed  so  early  before 
the  expiration  of  the  patent  that  ac- 
cording to  the  usual  practice  of  the 
court  no  injunction  could  be  obtained 
in  time  to  be  of  any  service. 

33.  In  Welch  v.  Byrns,  38  111.  20, 
Starr.  J.,  of  the  20th  Circuit  in 
Chambers,  refused  an  injunction  on 
February  1,  1805,  and  endorsed  his 
refusal  on  the  bill.  On  February  8, 
Sheldon,  J.,  of  the  14th  Circuit, 
granted  the  injunction  in  open  court 
conditioned  on  plaintiff  giving  a  bond. 
On  February  9,  Starr,  J.,  on  his  own 
motion  and  without  the  knowledge 
of  any  of  the  parties  vacated  the  in- 
junction. On  February  10,  he  pro- 
ceeded to  draw  up  and  file  in  the 
clerk's  office  "  Orders  by  the  Court 
of  Chancery,"  one  of  which  pre- 
vented the  court  clerk  from  issuing 
the  writ  and  the  other  was  in  part 
in  these  words :  "  It  is  therefore  or- 
dered that  any  order  for  an  injunc- 
tion by  any  judge  not  having  appel- 


104 


Jurisdiction. 


§51a 


has  assumed  jurisdiction  over  the  subject  matter  of  controversy 
by  issuing  an  injunction  a  court  of  concurrent  jurisdiction  ought 
not  to  interfere  by  means  of  a  second  injunction.34  Again,  a 
statute  is  not  to  be  construed  as  depriving  a  court  of  its  injunctive 
jurisdiction  in  the  absence  of  plain  terms  to  that  effect.35 

§  51a.  Same  subject;  effect  of  completion  of  act  during 
pendency  of  action.— The  jurisdiction  of  a  court  of  equity  to 
afford  relief  is  not  affected  by  the  fact  that  during  the  pendency  of 
the  proceedings  the  act  which  it  was  sought  to  enjoin  has  been  done 
but  in  such  a  case  the  court  may  require  a  restoration  by  the 
defendant  to  the  condition  which  existed  at  the  time  jurisdiction 


late  jurisdiction  over  this  court,  upon 
any  bill  which  has  been  passed  upon 
by  this  court  and  injunction  refused, 
being,  in  effect,  a  reversal  of  the  de- 
cision of  this  court,  and  an  unwar- 
rantable assumption  of  power,  shall 
be  held  and  treated  as  void  and  of  no 
effect."  On  refusal  of  the  clerk  to 
issue  the  injunction  as  required  by 
the  order  of  Sheldon,  J.,  he  was 
compelled  to  do  so  by  mandamus  and 
the  Supreme  Court  said:  "Nor  can 
the  order  of  Judge  Starr  vacating 
the  order  of  Judge  Sheldon  avail  the 
clerk  as  an  excuse  for  disobeying  that 
order.  The  order  was  binding  and 
effectual  and  could  be  got  rid  of  only 
in  the  mode  pointed  out  in  the  stat- 
ute," that  is  by  motion  "  at  any  time 
in  term."  The  court  also  said :  "  It 
may  be  a  matter  of  some  delicacy  for 
one  circuit  judge  to  overrule  another 
on  an  application  for  a  writ  of  in- 
junction, but  that  he  has  the  power 
so  to  do,  by  granting  the  writ  which 
another  judge  has  refused  cannot  we 
think  be  denied,  when  the  broad  terms 
of  the  statute  are  considered." 

34.  Winn  v.  Albert,  2  Md.  Ch.  42, 
54,    where   the   court   said :      "  Great 


caution  should  certainly  be  observed 
lest  the  powers  of  these  co-ordinate 
courts  should  be  brought  into  col- 
lision as  it  is  apparent  the  evils  of 
such  collision  would  be  of  serious 
magnitude;  and  I  am  persuaded,  the 
safer  if  not  the  only  course  is  that 
each  court  shall  never  suffer  itself  to 
interfere  in  a  cause,  or  in  regard  to 
a  subject  matter  over  which  another 
has  exercised  its  jurisdiction.  And 
such  1  understand  to  be  the  doctrine 
of  the  late  chancellor,  which  was 
sanctioned  by  the  Court  of  Appeals 
in  the  case  of  Brown  v.  Wallace,  4 
Gill  &  J.  479.  The  Court  of  Appeal 
in  that  case  says:  " 'Tis  true  both 
courts  in  ordinary  cases  have  author- 
ity to  grant  injunctions,  but  where  a 
suit  has  been  commenced  in  one,  it 
ought  to  be  entitled  to  retain  it." 

35.  Where  a  statute  directs  a  de- 
cision on  a  motion  to  set  aside  an 
injunction  to  be  rendered  within  20 
days  after  submission,  but  contains 
no  provision  depriving  the  court  of 
jurisdiction  in  case  the  decision  is 
not  rendered  within  that  time,  the 
provision  is  merely  directory.  Wat- 
son v.  Coe,  5  N.  Y.  Supp.  614. 


105 


§'§  51b,  52  Jurisdiction. 

was  acquired  even  though  no  injunction  pendente  lite  was  issued." 
So  a  party  filing  a  bill  for  an  injunction  may  fail  to  procure  a 
preliminary  injunction,  but  any  act  after  the  court  has  acquired 
jurisdiction  will  be  subject  to  the  power  of  the  court  to  compel 
restoration  of  the  status  or  to  enforce  such  other  relief  as  may  be 
proper.37 

§  51b.  Prohibition  to  prevent  erroneous  exercise  of  jurisdic- 
tion will  not  lie. — Where  the  court  has  jurisdiction  of  the  subject 
matter  and  of  the  parties  in  a  proceeding  for  an  injunction,  pro- 
hibition will  not  lie  to  prevent  an  erroneous  exercise  of  that  juris- 
diction. Thus  it  was  held  that  prohibition  would  not  lie  against 
the  threatened  enforcement  of  a  temporary  injunction  issued  in 
a  suit  against  a  corporation,  enjoining  the  relators  from  acting  as 
stockholders  in  a  corporation  during  the  pendency  of  the  action, 
where  the  relators  intervened  in  that  suit,  moved  to  dissolve  the 
injunction,  and  appealed  from  the  decision.38 

§  52.  Objection  to  jurisdiction,  when  to  be  made. — The  want 
of  jurisdiction  if  relied  on  by  defendant  should  be  alleged  by 
plea  or  answer,  and  the  objection  is  too  late  at  the  hearing  in  the 
appellate  court  unless  the  want  of  jurisdiction  is  apparent  on  the 
face  of  the  bill,39  and  where  the  objection  of  want  of  jurisdiction 
in  equity  because  of  adequate  remedy  at  law  is  not  made  until  the 
hearing  on  appeal  and  the  subject  matter  belongs  to  the  class  over 
which  a  court  of  equity  has  jurisdiction,  the  Federal  Supreme 
Court  does  not  feel  bound  to  entertain  the  objection  even  though 
if  taken  at  the  proper  time  it  might  have  been  worthy  of  atten- 
tion.40 But  that  court  may  for  its  own  protection  prevent  matters 
purely  cognizable  at  law  from  being  drawn  into  chancery  at  the 
pleasure  of  the  parties  and  where  the  want  of  jurisdiction  is  quite 

36.  Holden  v.  Alton,  179  HI.  318,  38.  State  v.  Kennan,  35  Wash.  52, 
53  N.  E.  556.  76  Pac.  516. 

37.  New  Haven  Clock  Co.  v.  Koch-  39.  VVylie    v.    Cox,    15    How.    Pr. 
ersperger,   175  111.  383,  51  N.  E.  629.  415,  420. 

Per  Cartwright,  J.  40.  Rynes   v.   Dumont,    130   U.    S. 

354,  9  S.  Ct.  486,  32  L.  Ed.  934. 

106 


Jurisdiction.  §  52 

apparent  it  is  the  duty  of  the  court  to  recognize  it  though  not 
raised  by  the  pleadings  nor  suggested  by  counsel.41  A  Code  pro- 
vision that  an  action  to  determine  and  quiet  the  title  to  real 
property  may  be  brought  by  any  one  having  or  claiming  an  interest 
therein,  whether  in  or  out  of  possession  of  the  same  against  one 
not  in  possession  though  construed  by  the  courts  of  the  State  in 
which  it  is  in  force  as  authorizing  a  suit  in  equity  to  recover  pos- 
session of  real  estate  from  the  occupant  in  possession  of  it.  does 
not  enlarge  the  equity  jurisdiction  of  Federal  courts  in  that  State 
so  as  to  give  them  jurisdiction  over  a  suit  of  equity  in  a  case  where 
an  adequate  remedy  may  be  had  at  law  j42  though  such  statute  does 
enlarge  the  equity  jurisdiction  of  the  State  courts.43  In  an  equity 
action,  the  defendant  in  order  to  insist  that  plaintiff  had  an 
adequate  remedy  at  law,  must  set  it  up  in  his  answer;44  or  must 
take  the  objection  by  demurrer  if  it  appears  on  the  face  of  the  bill.45 
Where  the  complaint  in  an  action  for  injunctive  relief  alleged  that 
the  plaintiff  had  no  adequate  remedy  at  law,  whereby  multiplicity 
of  suits  would  result,  and  this  was  admitted  by  the  answer,  it  was 
held  that  the  objection  that  such  a  remedy  did  exist  could  not  be 
raised  at  the  trial.46  And  the  objection  that  the  facts  stated  in  the 
complaint  are  not  sufficient  to  confer  jurisdiction  to  grant  an 
injunction  cannot  be  raised  for  the  first  time  upon  an  appeal,  but 

41.  Lewis  v.  Cocks,  23  Wall.  466,  Pr.  235;  Grandin  v.  LeRoy.  2  Paige, 
23  L.  Ed.   70;   Oelrichs  v.  Spain,    15  509;   Lelloy  v.  Piatt,  4  Paige,  77. 
Wall.  211,  21  L.  Ed.  43.  45.  Consolidated  Roller  Mill  Co.  v. 

42.  Whitehead  v.  Shattuck,  138  U.  Coombs,  39  Fed.  25.  In  Wisconsin 
S.  146,  11  S.  Ct.  276,  34  L.  Ed.  873.  the  objection  may  be  made  by  de- 
distinguishing  Holland  v.  Challen,  110  murrer  ore  tenus.  Stein  v.  Benedict, 
U.  S.  15,  3  S.  Ct.  495,  28  L.  Ed.  52,  83  Wis.  603,  53  N.  W.  891,  895;  Trus- 
and  Reynolds  v.  National  Bank,  112  tees  v.  Kilbourn,  74  Wis.  452,  43  N. 
U.  S.  405,  5  S.  Ct.  213,  28  L.  Ed.  W.  168;  Avery  v.  Ryan,  74  Wis.  599, 
733.  43  X.  W.  317;  but  not  after  answer 

43.  Whitehead  v.  Shattuck.  138  U.  to  the  merits.  Sherry  v.  Smith,  72 
S.  146,  152,  11   S.  Ct.  276,  34  L.  Ed.  Wis.   339,   39   N.  W.   556;    Turpin   v. 

Dennis,  139  111.  274,  28  N.  E.  1065; 

44.  Ostrander  v.  Weber,  114  N.  Y.  Magee  v.  Magee,  51  111.  500;  Dodge 
95,    21    N.    E.    112;     Cox    v.    James,       v.  Wright,  48  111.  384. 

45    N.    Y.    557;    Truscott    v.    King,  46.  Town   of   Mentz  v.   Cook,    108 

6  N.  Y.  147;  Green  v.  Milbank.  3  Abb.       N.  Y.  504,  15  N.  E.  541 
N.  C.  138;   Pam  v.  Vilmer.  54  How. 

107 


^g  53;  54  .1  I  KISI.KTION. 

should  be  raised  by  answer  and  presented  at  the  trial.47  Parties 
havino-  recognized  the  injunction  as  valid  are  estopped  from  attack- 
ing the  jurisdiction  of  the  court  or  judge  who  granted  it.48 

§  53.  No  injunctive  jurisdiction  where  controversy  submitted. 
— In  a  controversy  submitted  upon  admitted  facts  under  the  New 
York  Code  an  injunction  is  expressly  prohibited,49  though  the 
question  submitted  is  whether  or  not  the  plaintiff  is  entitled  to  an 
injunction.50  In  a  controversy  so  submitted,  where  an  injunction 
is  sought  to  restrain  defendant  from  continuing  business  in  an 
alleged  unlawful  manner,  and  to  recover  a  penalty  for  a  violation 
of  law,  the  proceeding  as  to  the  injunction  will  be  dismissed, 
but  retained  for  disposition  as  to  the  penalty.51  And  a  case  so 
submitted  must  be  dismissed  where  the  only  question  involved  is 
whether  the  beneficiaries  under  a  certificate  of  membership  in  a 
mutual  life  insurance  association  shall  be  paid  out  of  its  reserve 
fund  or  out  of  an  assessment  to  be  levied  on  all  the  holders  of  cer- 
tificates, including  that  represented  by  the  beneficiaries,  as  the  only 
effective  relief  in  their  favor  would  be  an  injunction  against  levy- 
ing the  assessment.52 

§  54.  Limited  injunctive  jurisdiction  over  public  officers. — 
The  general  rule  is  that  the  courts  cannot  interpose  by  injunction 
or  mandamus  to  limit  or  direct  the  discretion  and  action  of  depart- 
mental officers  in  respect  of  pending  matters,  within  their  juris- 

47.  Cunningham  v.  Fitzgerald,  51  ment.  Freeland  v.  Stillman  49  Kan. 
N.  Y.  St.  R.  840.  197,  30  Pac.  235. 

48.  In  a  suit  for  an  injunction,  49.  Code  Civ.  Pro.  §  1281.  See 
defendants  cannot  object  that  the  also  Cunard  Steamship  Co.  v.  Voor- 
judge  of  a  county  other  than  that  in  his,  104  N.  Y.  525,  11  N.  E.  49. 
which  the  suit  is  brought,  and  to  50.  Cunard  Steamship  Co.  v.  Voor- 
whom  application  was  made,  in  the  his,  104  N.  Y.  525,  11  N.  E.  49. 
absence  of  the  latter  judge,  for  a  51.  People  v.  Binghamton  Trust 
temporary  restraining  order,  had  no  Co.,  20  N.  Y.  Supp.  179,  47  N.  Y.  St. 
power  to  grant  the  order,  where  they  R.  570. 

have    recognized    the   order   as   valid,  52.  Patterson      v.      Mutual      Life 

and  agreed  that  it  should  remain  in       Ass'n,   11  N.  Y.  Supp.  636,  33  N.  Y. 
force  until  the  final  hearing  and  judg-       St.  R.  703,  19  Civ.  Pro.  262. 

108 


Jurisdiction. 


54 


diction  and  control.53  As  the  executive  department  of  the 
government  is  not  subject  to  the  jurisdiction  of  the  judicial 
department  the  President  cannot  be  enjoined  from  enforcing  an 
Act  of  Congress  on  the  ground  of  its  being  unconstitutional.54 
And  it  has  been  decided  that  the  action  of  the  Secretary  of  the 
Interior  directing  the  Commissioner  of  the  Land  Office  to  cancel 
an  entry  of  land  is  within  the  exclusive  control  of  the  department 
and  can  not  be  interfered  with  by  injunction  while  the  matter  is 
pending.55  So  the  United  States  Circuit  Court  has  no  power  to 
stay  the  Land  Department  in  the  discharge  of  a  duty  which  is  not 
ministerial  but  involves  the  exercise  of  judgment  and  discretion. 
The  remedy  for  an  infringement  of  the  rights  of  the  plaintiff  is 


53.  A  surveyor,  acting  under  spe- 
cial instructions  based  upon  an 
opinion  of  the  Secretary  of  the  In- 
terior, surveyed  an  old  Spanish  grant, 
and  reported  the  same  to  the  Sur- 
veyor General.  Protests  were  filed 
against  the  survey;  but  the  Surveyor 
General  approved  the  same,  and  for- 
warded it,  together  with  the  protests 
and  evidence,  to  the  Commissioner  of 
the  General  Land  Office.  The  latter 
accepted  the  survey  in  part,  but  re- 
served the  remainder  for  further  con- 
sideration, meantime  directing  the 
Surveyor  General  to  withhold  the  fil- 
ing of  the  triplicate  plats  from  the 
local  land  office.  The  matter  was 
then  referred  to  the  Secretary  of  the 
Interior,  who  held  that  the  survey 
did  not  comply  with  the  decision  of 
his  predecessor,  and  directed  a  new 
survey.  Held,  that  the  action  of  the 
Surveyor  General  and  the  commis- 
sioner did  not  exhaust  the  authority 
of  the  land  department,  but  that  the 
matter  was  still  lawfully  pending 
therein,  and  the  courts,  therefore, 
had  no  authority  to  enjoin  the  ob- 
literation of  the  old  survey  or  the 
making  of  the  new  one.  City  of  New 
Orleans  v.  Paine,  49  Fed.  12,  abirmed, 


(Cir.  Ct.  App.),  51  Fed.  833,  2  C. 
C.  A.  516,  aff'd  147  U.  S.  261,  37 
L.  Ed.  162,  13  S.  Ct.  303. 

Where  defendant  entered  as  a 
homestead  certain  land  in  the  pos- 
session of  the  widow  and  children  of 
a  decedent,  who  had  filed  his  declara- 
tory statement  under  the  pre-emption 
laws,  and  paid  the  register's  and  re- 
ceiver's fees,  and  the  question  of  title 
is  pending  before  the  Secretary  of  the 
Interior,  a  contest  to  determine  title 
is  not  within  the  jurisdiction  of  the 
courts,  but  they  will  grant  a  tem- 
porary injunction,  restraining  the  dis- 
turbance of  the  person  so  far  in  right- 
ful possession.  Wood  v.  Murray,  85 
Iowa,  505,  52  N.  W.  356;  Andrews  v. 
Murray,  85  Iowa,  736,  52  N.  W.  357. 

See  further  on  this  subject,  chap. 
XLVIII,  herein. 

54.  Mississippi  v.  Johnson,  4  Wall. 
(U.  S.)  495,  18  L.  Ed.  437;  Georgia 
v.  Stanton.  6  Wall.  (U.  S.)  50,  18  L. 
Ed.  721. 

55.  Gaines  v.  Thompson,  7  Wall. 
(U.  S.)  347,  352  19  L.  Ed.  62; 
Fourniquet  v.  PerKins,  16  How.  (U. 
S.)  82,  14  L.  Ed.  854.  See,  also. 
Stotesbury  v.  U.  S.,  146  U.  S.  196, 
13  S.  Ct.  1,  36  L.  Ed.  940. 


109 


§54 


JuBISDICTION. 


at  law  after  the  conclusion  of  the  administrative  action  on  the 
part  of  the  government.5*  But  if  a  head  of  a  department  of  the 
government  has  no  power  or  authority  to  do  a  certain  act  he  may 
be  enjoined  from  doing  it,57  as  he  would  be  subject  to  a  mandamus 
if  he  refused  to  do  an  act  which  the  law  plainly  required  him  to 
do.68  And  State  officers  may  be  enjoined  in  the  Federal  courts 
from  obeying  State  laws  which  have  been  declared  unconstitu- 
tional.69 So  it  has  been  decided  that  a  district  attorney  may  be 
enjoined  from  commencing  a  criminal  prosecution  under  a  statute 
which  is  invalid.60  But  in  a  case  in  New  York  it  is  decided  that 
the  courts  of  that  State  have  no  power  to  restrain  by  injunction 
the  acts  of  officers  of  the  State  who  are  proceeding  under  authority 


56.  Kirwan  v.  Murphy,  189  U.  S. 
35,  54,  23  Sup.  Ct.  599,  47  L.  Ed. 
698,  holding  that  the  land  depart- 
ment charged  with  the  duty  of  sur- 
veying the  public  domain  must  pri- 
marily determine  what  are  public 
lands  subject  to  survey  and  disposal 
under  the  public  land  laws,  and  that 
its  exercise  of  jurisdiction  cannot  be 
questioned  by  the  courts  before  it  has 
taken  final  action. 

57.  Noble  v.  Union  River  Logging 
Railroad,  147  U.  S.  165,  13S.Ct.271, 
37  L.  Ed.  123.  In  Attorney  General  v. 
Eau  Claire,  37  Wis.  400.  an  injunction 
was  granted  to  restrain  the  common 
council  and  city  clerk  from  executing 
an  unconstitutional  law  for  the  ob- 
struction of  a  navigable  river. 

58.  Board  of  Liquidation  v.  Mc- 
Comb,  92  U.  S.  531,  541,  23  L.  Ed.  623, 
where  Bradley,  J.,  said:  "It  has  been 
well  settled  that  when  a  plain  official 
duty  requiring  no  exercise  of  discre- 
tion is  to  be  performed,  and  perform- 
ance is  refused,  any  person  who  will 
sustain  personal  injury  by  such  refusal 
may  have  a  mandamus  to  compel  its 
performance;  and  when  such  duty  is 
threatened    to    be   violated   by   some 


positive  official  act,  any  person  who 
will  sustain  personal  injury  thereby, 
for  which  adequate  compensation  can- 
not be  had  at  law,  may  have  an  in- 
junction to  prevent  it.  Jn  such  cases 
the  writs  of  mandamus  and  injunc- 
tion are  somewhat  correlative  to  each 
other.  In  either  case  if  the  officer 
plead  the  authority  of  an  unconstitu- 
tional law  for  the  nonperformance  or 
violation  of  his  duty,  it  will  not  pre 
vent  the  issuing  of  the  writ.  Osborn 
v.  U.  S.  Bank  9  Wheat.  859,  6  L.  Ed. 
230;  Davis  v.  Gray,  16  Wall.  220,  21 
L.  Ed.  447." 

59.  Claybrook  v.  City  of  Owens- 
boro,  16  Fed.  297,  304,  citing  Osborn 
v.  Bank  of  U.  S.,  9  Wheat.  (U.  S.) 
738,  6  L.  Ed.  230;  Davis  v.  Gray,  16 
Wall.  (U.  S.)  205,  21  L.  Ed.  447; 
Board  of  Liquidation  v.  McComb, 
92  U.  S.  532,  23  L.  Ed.  623;  United 
States  v.  Lee,  106  U.  S.  196,  1  Sup. 
Ct.  240.  27  L.  Ed.  171;  Hancock 
v.  Walsh,  3  Wood,  351;  Berton- 
neau  v.  Board  of  Directors  City 
Schools,  3  Woods,  177;  Evansville 
Nat.  Bank  v.  Britton,  8  Fed.  867. 

60.  Central  Trust  Co.  v.  Citizens' 
Street  R.  Co.,  80  Fed.  218. 


110 


Jurisdiction. 


;>.> 


of  a  law  of  the  State  and  it  is  declared  that  the  fact  that  such  law 
is  unconstitutional  forms  no  ground  for  granting  such  injunction.61 
The  mere  ministerial  acts  and  duties  of  public  officers  may,  how- 
ever, be  reviewed  by  the  courts  and  controlled  by  injunctions.62 

§  55.  Same  subject. — The  English  Court  of  Chancery  had  no 
jurisdiction  to  restrain  the  appointment  or  removal  of  a  municipal 
officer.83    And  in  this  country  it  is  well  settled  that  courts  of  equity 


61.  Thompson  v.  Commissioner  of 
Canal  Fund,  2  Abb.  Pr.   (N.  Y.)   248. 

62.  Noble  v.  Union  River  Logging 
Railroad,  147  U.  S.  165,  171,  13  S. 
Ct.  271,  37  L.  Ed.  123,  where  Brown, 
J.,  said:  "With  regard  to  the  ju- 
dicial power  in  cases  of  this  kind 
it  was  held  by  this  court  as  early 
as  1803,  in  the  great  case  of 
Marbury  v.  Madison,  1  Cranch,  137, 
that  there  was  a  distinction  between 
acts  involving  the  exercise  of  judg- 
ment or  discretion  and  those  which 
are  purely  ministerial ;  that,  with  re- 
spect to  the  former  there  exists  and 
can  exist  no  power  to  control  the 
executive  discretion  however  errone- 
ous its  exercise  may  seem  to  have 
been,  but  with  respect  to  ministerial 
duties  an  act  or  refusal  to  act  is,  or 
may  become,  the  subject  of  review  by 
the  courts.  The  principle  of  this  case 
was  applied  in  Kendall  v.  United 
States,  12  Pet.  524,  and  the  action  of 
the  Circuit  Court  sustained  in  a  pro- 
ceeding where  it  had  commanded  the 
Postmaster-General  to  credit  the  re- 
lator with  a  certain  sum  awarded  to 
him  by  the  solicitor  of  the  Treasury 
under  an  Act  of  Congress  authorizing 
the  latter  to  adjust  the  claim,  this 
being  regarded  as  purely  a  ministerial 
duty.  In  Decatur  v.  Paulding,  14 
Pet.  497,  a  mandamus  was  refused 
upon  the  same  principle,  to  compel 
the  Secretary  of  the  Navy  to  allow  to 


the  widow  of  Commodore  Decatur  a 
certain  pension  and  arrearages.  In- 
deed, the  reports  of  this  court  abound 
with  authorities  to  the  same  effect. 
Kendall  v.  Stokes,  3  How.  87;  Brash- 
ear  v.  Mason,  6  How.  92;  Reeside  v. 
Walker,  11  How.  272;  Commissioner 
of  Patents  v.  Whitely,  4  Wall.  522; 
United  States  v.  Seaman,  17  How. 
225,  231;  United  States  v.  Guthrie, 
17  How.  284;  United  States  v.  The 
Commissioner,  5  Wall.  563;  Gaines 
v.  Thompson,  7  Wall.  347 ;  The  Secre- 
tary v.  McOarrahan,  9  Wall.  298; 
United  States  v.  Schurz,  102  U.  S. 
378;  Butterworth  v.  Hoe,  112  U.  S. 
50,  5  S.  Ct.  25;  United  States  v. 
Black,  128  U.  S.  40.  In  all  these 
cases  the  distinction  between  discre- 
tionary and  ministerial  acts  is  com- 
mented upon  and  enforced.  We  have 
no  doubt  the  principle  of  these  de- 
cisions applies  to  a  case  wherein  it  is 
contended  that  the  act  of  the  head  of 
a  department,  under  any  view  that 
could  be  taken  of  the  facts  that  were 
laid  before  him,  was  ultra  vires,  and 
beyond  the  scope  of  his  authority." 
In  State  v.  Cunningham,  81  Wis.  440, 
51  N.  W.  724,  the  official  acts  of  the 
Secretary  of  State  in  issuing  and  pub 
lishing  notices  of  election  were  held 
to  be  ministerial  and  controllable  by 
injunction  or  mandamus  as  the  ex- 
igencies might  require. 

63.  Attorney  General  v.  Clarendon, 
17  Ves.  491. 


Ill 


§55 


Jurisdiction. 


haw  no  jurisdiction  to  enjoin  the  appointment  or  removal  of 
public  officers,  whether  the  power  of  appointment  and  removal 
is  vested  in  executive  or  administrative  boards  or  officers,  or  is 
entrusted  to  a  judicial  tribunal.64  The  jurisdiction  to  determine 
the  title  to  a  public  office  belongs  only  to  courts  of  law  and  i3 
exercised  either  by  certiorari,  error  or  appeal,  or  by  mandamus, 
prohibition,  quo  warranto  or  information  in  the  nature  of  a  writ 
of  quo  warranto,  according  to  the  circumstances  of  the  case,  and 
the  mode  of  procedure  established  by  the  common  law  or  by 
statute.65     In  New  York  the  Attorney-General  may  maintain  an 


64.  White  v.  Berry,  171  U.  S.  366, 
18  Sup.  Ct.  917,  43  L.  Ed.  199; 
White  v.  Butler,  171  U.  S.  379,  18 
Sup.  Ct.  949,  43  L.  Ed.  204;  Tappan 
v.  Gray.  9  Paige  (N.  Y.),  507,  509, 
512;  aff'd  7  Hill,  259. 

65.  In  Re  Sawyer,  124  U.  S.  200, 
213,  8  S.  Ct.  482,  31  L.  Ed.  402, 
Gray,  J. :  "  The  Supreme  Court  of 
Pennsylvania  has  decided  that  an 
injunction  cannot  be  granted  to  re- 
strain a  municipal  officer  from 
exercising  an  office  which  he  has 
vacated  by  accepting  another  office,  or 
from  entering  upon  an  office  under  an 
appointment  by  a  town  council  al- 
leged to  be  illegal ;  but  that  the  only 
remedy  in  either  case  is  at  law  by 
quo  warranto.  Hagner  v.  Heyberger, 
7  Watts  &  Serg.  104;  Updegraff  v. 
Crans,  47  Pa.  St.  103.  The  Supreme 
Court  of  Iowa,  in  a  careful  opinion 
delivered  by  Judge  Dillon,  has  ad- 
judged that  the  right  to  a  municipal 
office  cannot  be  determined  in  equity 
upon  an  original  bill  for  an  injunc- 
tion. Cochran  v.  McCleary,  22  Iowa. 
75.  In  Delehanty  v.  Warner,  75  111. 
185,  it  was  decided  that  a  court  of 
chancery  had  no  jurisdiction  to  en- 
tertain a  bill  for  an  injunction  to 
restrain  the  mayor  and  aldermen  of 
a  city  from  unlawfully  removing  the 


plaintiff  from  the  office  of  superin- 
tendent of  streets,  and  appointing  a 
successor;  but  that  the  remedy  was 
at  law  by  quo  warranto  or  mandamus. 
In  Sheridan  v.  Colvin,  78  111.  237,  it 
was  held  that  a  court  of  chancery  had 
no  jurisdiction  to  restrain  by  injunc- 
tion a  city  council  from  passing  an 
ordinance  unlawfully  abolishing  the 
office  of  commissioner  of  police.  Upon 
like  grounds,  it  was  adjudged  in 
Dickey  v.  Reed,  78  111.  261,  that  a 
court  of  chancery  had  no  power  to 
restrain  by  injunction  a  board  of 
commissioners  from  canvassing  the 
results  of  an  election;  and  that  or- 
ders granting  such  an  injunction  and 
adjudging  the  commissioners  guilty 
of  contempt  for  disregarding  it,  were 
wholly  void.  And  in  Harris  v. 
Schryock,  82  111.  119,  the  court  in  ac- 
cordance with  its  previous  decisions 
held  that  the  power  to  hold  an  elec- 
tion was  political  and  not  judicial, 
and  therefore  a  court  of  equity  had 
no  authority  to  restrain  officers  from 
exercising  that  power.  Similar  de- 
cisions have  been  made,  upon  full  con- 
sideration by  the  Supreme  Court  of 
Alabama,  overruling  its  own  prior  de- 
cisions to  the  contrary.  Beebe  v. 
Robinson,  52  Ala.  66;  Moulton  v. 
Reid,  54  Ala.  320.     In  Nebraska  the 


112 


Jurisdiction. 


§56 


action  against  the  usurper  of  a  public  or  corporate  office,  or  against 
an  officer  who  has  forfeited  his  office.6* 


§  56.  No  State  jurisdiction  of  patent  infringement. A  State 

court  has  no  jurisdiction  of  a  suit  to  enjoin  the  infringement  of  a 
patent.67  While  a  State  court  has  jurisdiction  to  decide  questions 
as  to  the  title  to  patents,  and  thereby  pass  upon  the  validity  of 
patents,  it  has  no  authority  to  restrain  a  party  from  using  a  patent 
pendente  lite.68    A  trade-mark  is  not  within  the  provisions  of  the 


authority  conferred  upon  county  com- 
missioners to  remove  county  officers 
has  since  been  held  not  to  be  an  ex- 
ercise of  strictly  judicial  power, 
within  the  meaning  of  that  provision 
of  the  Constitution  of  Nebraska, 
which  requires  that  '  the  judicial 
power  of  this  State  shall  be  vested  in 
a  Supreme  Court,  District  Courts,' 
and  other  courts  and  magistrates 
therein  enumerated.  Constitution  of 
Nebraska,  art.  6,  §  1 ;  State  v.  Oleson, 
15  Neb.  247.  But  it  has  always  been 
considered  as  so  far  judicial  in  its 
nature,  that  the  order  of  the  county 
commissioners  may  be  reviewed  on 
error  in  the  District  Court  of  the 
county,  and  ultimately  in  the  Su- 
preme Court  of  the  State.  State  v. 
Sheldon,  above  cited;  Minkler  v. 
State,  14  Neb.  181;  State  v.  Meeker, 
19  Neb.  444,  448.  See,  also,  Sioux 
City  &  Pacific  Railroad  v.  Washing- 
ton County,  3  Neb.  30,  41;  Nebraska 
Code  of  Civil  Procedure,  §§  580-584, 
599;  Criminal  Code  (ed.  1885), 
§  572.  This  view  does  not  substan- 
tially differ  from  that  taken  in  other 
States,  where  similar  orders  have  been 
reviewed  by  writ  of  certiorari,  as  pro- 
ceedings of  an  inferior  tribunal  or 
board  of  officers,  not  commissioned  as 
judges,  yet  acting  judicially  and  not 
according  to  the  course  of  the  com- 
mon law.     Charles  v.  Mayor  of  Ho- 


boken,  3  Dutcher,  203;  People  v.  Fire 
Commissioners,  72  N.  Y.  445;  Dona- 
hue v.  County  of  Will,  100  111.  94.  In 
Nebraska,  as  elsewhere,  the  validity 
of  the  removal  of  a  public  officer,  and 
the  title  of  the  person  removed,  or  of 
a  new  appointee  to  the  office,  may  be 
tried  by  quo  icarranto  or  mandamus. 
Neb.  Comp.  Stat.,  chap.  19,  §§  13,  24; 
chap.  71;  Code  of  Civil  Procedure, 
§§  645,  704;  Cases  of  Sheldon,  Oleson 
and  Meeker,  above  cited;  The  Queen 
v.  Sadlers'  Co.,  10  H.  L.  Cas.  404; 
Osgood  v.  Nelson,  L.  R.  5  H.  L.  636." 

66.  Code  Civ.  Pro..§  1948.  Com- 
pare §  1955.  In  this  State  quo  war- 
ranto has  been  abolished  by  the  Code, 
but  the  action  is  in  the  nature  of  a 
quo  warranto.  People  v.  Hall,  80 
N.  Y.  117. 

67.  Childs  v.  Tuttle,  7  N.  Y.  Supp. 
59;  Dudley  v.  Mayhew,  3  N.  Y.  9; 
Gibson  v.  Wood  worth,  8  Paige,  132; 
Kelly  v.  Kelly  Mf'g  Co.,  15  111.  App. 
547. 

68.  Continental,  etc.,  Service  Co. 
v.  Clark,  100  N.  Y.  365;  Hat  Sweat 
Mf'g  Co.  v.  Reinoehl,  102  N.  Y.  167; 
DeWitt  v.  Elmira  Mf'g  Co.,  66  N.  Y. 
459;  Hovey  v.  Rubber  Tip  Co.,  57 
N.  Y.  119;  Parson  v.  Barnard,  7 
Johns.  144;  Livingston  v.  Van  Ingen, 
9  Johns.  582.  In  the  first  of  the 
cases  last  cited  the  court  said :  "  The 
courts   of   this    State     have   an    un- 


113 


§57 


Jurisdiction. 


Federal  Constitution  respecting  patents  and  copyrights,  and  the 
act  of  Congress  conferring  exclusive  jurisdiction  upon  the  Federal 
courts  in  trade-mark  cases,  has  been  pronounced  unconstitutional.69 

§  57.  Peculiar  jurisdiction  of  trusts,  waste,  etc. — A  court  of 
equity  has  peculiar  jurisdiction  of  trusts  and  trustees,  and  will 
take  them  under  its  control  by  injunction,  when  necessary,  and 
direct  the  trustee  to  dispose  of  the  trust  fund  for  the  purposes  of 
the  trust,  and  will  adjust  all  the  equities  of  parties  interested  in 
due  and  regular  course.70  And  waste  causing  irreparable  injury 
will  be  restrained  by  injunction,  71  and  perhaps  contrary  to  the  old 
practice,  a  preliminary  injunction  will  now  be  issued  to  preserve 
property  from  destruction,  pending  proceedings  for  the  determina- 
tion of  title.72  The  remedy  by  injunction  is  applicable  to  every 
species  of  waste  ;73  and  lies  in  favor  not  only  of  the  first  estate  of 


doubted  right  to  adjudicate  upon 
questions  arising  in  reference  to  the 
title  to  letters  patent,  as  well  as 
other  questions  as  to  the  rights  of 
parties,  which  do  not  come  within 
the  provisions  of  law  relating  to 
patent  rights.  In  such  cases  the  right 
secured  by  the  patent  is  collateral 
to  the  main  purpose  and  object  of 
the  action,  and  when  this  is  the  case 
the  State  courts  have  jurisdiction  to 
determine  the  controversy.  Middle- 
brook  v.  Broadbent,  47  N.  Y.  443,  and 
while  they  have  authority  to  this 
extent,  they  cannot  acquire  jurisdic- 
tion beyond  this.  Here  is  the  divid- 
ing line,  and  a  State  court  cannot 
grant  relief  beyond  its  jurisdiction  as 
an  incident  to  other  relief  which  is 
within  its  power.  It  may  determine 
what  the  contract  is,  and  in  whom 
the  title  is  vested,  but  it  has  no  right 
to  say  that  a  party  shall  be  enjoined 
from  using  the  patent,  or  in  any  way 
to  pass  upon  any  question  arising  as 
to  its  infringement."     See,  also,  Har- 


tell  v.  Tilghman,  99  U.  S.  547,  25  L. 
Ed.  357. 

69.  United  States  v.  Steffens,  100 
U.  S.  82,  25  L.  Ed.  550. 

70.  Draper  v.  Davis,  104  U.  S.  347, 
26  L.  Ed.  783.  As  to  charitable  trusts, 
see  United  States  v.  World's,  etc.,  Ex- 
position, 56  Fed.  630,  646;  Jackson  v. 
Phillips,  14  Allen,  539,  556;  British 
Museum  v.  White,  2  Sim.  4  S.  594. 
As  to  conflicting  trustees,  see  Brun- 
dage  v.  Deardorf,  55  Fed.  839,  and 
cases  cited. 

71.  Lanier  v.  Alison,  31  Fed.  100; 
Fletcher  v.  New  Orleans  R.  Co.,  20 
Fed.  345. 

72.  Erhardt  v.  Boaro,  113  U.  S. 
537,  5  S.  Ct.  565  28  L.  Ed.  1113;  Le 
Roy  v.  Wright,  4  Sawyer,  530,  535; 
Jerome  v.  Ross,  7  Johns.  Ch.  315,  332. 
But  see  Pillsworth  v.  Hopton,  6  Ves. 
51  as  to  different  practice  in  time  of 
Lord  Eldon. 

73.  Clement  v.  Wheeler,  25  N.  H. 
361;  Moulton  v.  Stowell,  16  N.  H. 
221. 


114 


Jurisdiction. 


58 


inheritance,  but  also  of  any  party  in  remainder.74  Again,  equity 
will  not  restrain  a  person  from  publishing,  in  the  records  and 
books  of  a  mercantile  agency,  false  representations  as  to  the  busi- 
ness standing  and  credit  of  the  plaintiff,  if  no  breach  of  trust  or  of 
contract  is  involved.75  This  is  the  general  rule  as  to  libels  which 
involve  no  breach  of  trust  or  of  contract.76  And  a  stockholder  in 
a  corporation,  the  value  of  whose  shares  is  decreased  by  the 
directors'  wilful  waste  of  corporate  assets,  cannot  maintain  an 
action  at  law  against  them  for  damages,  but  must  seek  his  remedy 
in  equity,  and  in  a  proper  case  by  injunction.77 

§  58.  No  injunctive  jurisdiction  of  criminal  matters. — Except 
as  incidental  to  its  peculiar  jurisdiction  for  the  protection  of 
infants  and  its  authority  to  issue  writs  of  habeas  corpus  for  the 
discharge  of  persons  unlawfully  imprisoned,  the  English  Court  of 
Chancery  had  no  jurisdiction  over  criminal  matters,  whether  the 
proceedings  relating  thereto  were  by  indictment  or  by  summary 
process,78  unless  such  proceedings  are  instituted  by  a  party  to  a 
suit  already  pending  before  it,  and  to  try  the  same  right  that  is 
in  issue  there.7' 


74.  Dennett  v.  Dennett,  43  N.  H. 
499. 

75.  Raymond  v.  Russell,  143  Mass. 
295;  58  Am.  Rep.  137;  White- 
head v.  Kitson,  119  Mass.  484;  Pru- 
dential Assur.  Co.  v.  Knott,  L.  R.  10 
Ch.   142. 

76.  Boston  Diatite  Co.  v.  Florence 
Mf'g  Co.,  114  Mass.  69. 

In  such  cases  if  plaintiff  has 
any  remedy,  it  is  by  action  at 
law.  Barley  v.  Walford,  9  Q.  B. 
197;  Wren  v.  Meild,  L.  R.  4  Q.  B. 
730.  See,  also,  Mulkern  v.  Ward, 
L.  R.  13  Eq.  619;  Emperor  v.  Day,  3 
DeG.,  F.  &  J.  217,  238-241;  Fleming 
v.  Newton,  1  H.  L.  Cas.  363;  Seeley 
v.  Fisher,  11  Sim.  581;  Gee  v.  Pritch- 
ard,  2  Swanst.  402,  413. 

See  §  50  herein. 

77.  Hirsh   v.  Jones,   56  Fed.    137; 


Kendig  v.  Dean,  97  U.  S.  423,  24  L. 
Ed.  1061 ;  Dewing  v.  Perdicaries,  96 
U.  S.  193,  24  L.  Ed.  654;  Dodge  v. 
Woolsey,  18  How.  341,  15  L.  Ed.  401; 
Conway  v.  Halsey,  44  N.  J.  Law,  462. 

78.  2  Hale  P.  C.  147;  Gee  v. 
Pritchard,  2  Swanst.  402,  413.  See, 
also.  Kerr  v.  Corporation  of  Preston, 
L.  R.  6  Ch.  463;  Saull  v.  Browne, 
L.  R.  10  Ch.  64;  Attorney  Gen.  v. 
Utica  Ins.  Co.,  2  Johns.  Ch.  (N.  Y.), 
371,  378. 

79.  In  Re  Sawyer,  124  U.  S.  200, 
210,  8  S.  Ct.  482,  31  L.  Ed.  402,  Gray. 
J.:  "From  long  before  the  Declaration 
of  Independence,  it  has  been  settled  in 
England,  that  a  bill  to  stay  criminal 
proceedings  is  not  within  the  jurisdic- 
tion of  the  Court  of  Chancery,  whether 
those  proceedings  are  by  indictment 
or  by  summary  process.     Lord  Chief 


115 


§59 


JUEISDICTION. 


§  59.  Same  subject. — The  rule  so  long  existing  in  England,  and 
laid  down  in  the  preceding  section,  has  been  uniformly  upheld 
in  this  country,  and  it  is  a  generally  accepted  rule  that  courts  of 
equity  deal  only  with  civil  and  property  rights  and  that  an  injunc- 
tion will  not  be  granted  the  object  of  which  is  to  enjoin  the 
prosecution    of    criminal    proceedings80    or    the    commission    of 


Justice  Holt,  in  declining,  upon  a 
motion  in  the  Queen's  Bench  for  an 
attachment  against  an  attorney  for 
professional  misconduct,  to  make  it 
a  part  of  the  rule  to  show  cause  that 
he  should  not  move  for  an  injunction 
in  chancery  in  the  meantime,  said: 
'  Sure  chancery  would  not  grant  an 
injunction  in  a  criminal  matter  under 
examination  in  this  court,  and  if  they 
did,  this  court  would  break  it,  and 
protect  any  that  would  proceed  in 
contempt  of  it.'  Holderstaffe  v. 
Saunders,  Cas.  temp.  Holt,  136;  s.  c. 
6  Mod.  16.  Lord  Chancellor  Hard- 
wicke,  while  exercising  the  power  of 
the  Court  of  Chancery,  incidental  to 
the  disposition  of  a  case  pending  be- 
fore it,  or  restraining  a  plaintiff,  who 
had  by  his  bill  submitted  his  rights 
to  its  determination,  from  proceeding 
as  to  the  same  matter  before  another 
tribunal,  either  by  indictment  or  by 
action,  asserted  in  the  strongest  terms 
the  want  of  any  power  or  jurisdic- 
tion to  entertain  a  bill  for  an  injunc- 
tion to  stay  criminal  proceedings, 
saying:  'This  court  has  not,  origi- 
nally and  strictly,  any  restraining 
power  over  criminal  prosecutions;' 
and  again :  '  This  court  has  not 
jurisdiction  to  grant  an  injunction 
to  stay  proceedings  on  a  mandamus, 
nor  to  an  indictment,  nor  to  an  in- 
formation, nor  to  a  writ  of  prohibi- 
tion, that  I  know  of,'  Mayor,  etc.,  of 
York  v.  Pilkington,  2  Atk.  302;  Mon- 
tague v.  Dudman,  2  Ves.  Sen.  396, 
398.  The  modern  decisions  in  England, 


by  eminent  equity  judges,  concur  in 
holding  that  a  court  of  chancery  has 
no    power    to   restrain    criminal    pro- 
ceedings,   unless    they    are    instituted 
by  a  party  to  a  suit  already  pending 
before   it,  and  to  try  the  same  right 
that  is  in  issue  there.    Attorney  Gen- 
eral   v.    Cleaver,    18    Ves.    211,    220 
Turner    v.    Turner,    15    Jurist,    218 
Saull    v.    Browne,    L.    R.    10    Ch.   64 
Kerr  v.  Preston,  6  Ch.  D.  463." 

See  as  to  same  principle  in  Federal 
courts  Rhodes  &  J.  Mf'g  Co.  v.  State, 
70  Fed.  721. 

80.  United  States. — Fitts  v.  Mc- 
Ghee,  172  U.  S.  516,  19  Sup.  Ct.  209, 

43  L.  Ed.  535 ;  Logan  v.  Postal  Teleg. 
Co.,  157  Fed.  570;  Hemsley  v.  Meyers, 
45  Fed.  283;  Sness  v.  Noble,  31  Fed. 
855. 

Alabama. — Bessemer  v.  Bessemer 
Waterworks,  (Ala.  1907)  44  So.  663; 
Montgomery  v.  West,  (Ala.  1906)  40 
So.  215;  Moses  v.  Taylor,  52  Ala. 
198. 

Arkansas. — New  Home  Sew.  Mach. 
Co.  v.  Fletcher,  44  Ark.  139. 

California. — Sullivan  v.  San  Fran- 
cisco G.  &  E.  Co.,  (1905)  83  Pac. 
156. 

Connecticut. — Tyler    v.    Hamersley, 

44  Conn.  419. 

District  of  Columbia. — Washington 
&  G.  R.  Co.  v.  District  of  Columbia, 
6  Mackey,  570. 

Georgia. — Georgia  Ry.  &  E.  Co.  v. 
Oakland,  (Ga.  1907)  59  S.  E.  296; 
Salter  v.  Columbus,  125  Ga.  96,  54 
S.  E.  74;   Phillips  v.  Mayor,  61  Ga. 


116 


Jurisdiction. 


59 


a  criminal  act.80*  As  public  offenses  are  prosecuted  in 
the  name  of  the  sovereign,  whether  king  or  State,  it  is  also 
obvious  that  the  restraining  power  of  courts  of  equity  would  be 
futile,  as  against  the  sovereign.81  So  where  a  bill  has  been  filed 
for  relief  in  equity,  the  court  will  not  enjoin  the  plaintiff  in  that 
suit  from  carrying  on  criminal  proceedings  against  the  same  de- 
fendant concerning  the  same  matter.82  Nor  will  an  injunction  be 
granted  in  the  case  of  an  illegal  arrest,  the  proper  remedy  for  such 
an  injury  being  either  an  action  for  damages  or  by  habeas  corpus.83 


386;  Gault  v.  Wallia,  53  Ga.  675. 

Kansas. — Levy  v.  Kansas  City, 
(Kan.  1906)   86  Pac.  149. 

Mississippi. — Crighto  v.  Dohmer, 
70  Miss.  602,  13  So.  237,  21  L.  R.  A. 
70. 

New  York. — Davis  v.  Society  for 
Prevention  of  Cruelty  to  Animals,  75 
N.  Y.  362;  Davis  v.  Society  for  Pre- 
vention of  Cruelty  to  Animals,  16 
Abb.  Prac.  (N.  S.)  73;  Balagh  v. 
Lyman,  6  App.  Div.  271,  39  N.  Y. 
Supp.  780;  West  v.  Mayor,  10  Paige, 
539;  Kenny  v.  Martin,  11  Misc.  R. 
651,  32  N.  Y.  Supp.  1087. 

North  Carolina. — State  v.  Southern 
Ry.  Co.,  (N.  C.  1907)  59  S.  E.  570; 
Cohen  v.  Goldsboro,  77  N.  C.  2. 

Ohio. — Predigested  Food  Co.  v.  Mc- 
Neal,  1  Ohio  ST.  P.  266. 

Oklahoma. — Golden  v.  Guthrie,  3 
Okla.  128,  41  Pac.  350. 

Texas. — Chisholm  v.  Adams,  71 
Tex.  678,  10  S.  W.  336. 

West  Virginia. — Flaherty  v.  Flem- 
ing,  (1906)   52  S.  E.  857. 

Wyoming. — Littleton  v.  Burgess, 
(1905),  82  Pac.  864. 

80a.  O'Brien  v.  Harris,  105  Ga. 
732,  31  S.  E.  745;  State  v.  Zachritz, 
166  Mo.  307,  65  S.  W.  999,  89  Am. 
St.  Rep.  711;  Manor  Casino  v.  State 
(Tex.  Civ.  App.),  34  S.  W.   76. 

Legislature  may  authorize 
granting    of     injunction    to     prevent 


crime.     Ex   parte  Allison,    (Tex.    Cr. 
1905)   90  S.  W.  492. 

81.  Suess  v.  Noble,  31  Fed.  855, 
857. 

82.  Saull  v.  Brown,  L.  R.  10  Ch. 
App.  64;  Moses  v.  Mayor,  52  Ala. 
198;  and  see  Davis  v.  American  Soc'y, 
75  N.  Y.  362;  Stuart  v.  Supervisors, 
83  111.  341.  Though  a  court  of  equity 
has  no  jurisdiction  to  enjoin  purely 
criminal  proceedings,  injunction  will 
lie  against  proceedings  by  a  prosecut- 
ing attorney  to  prevent  the  agents  of 
a  non-resident  importer  from  selling 
intoxicating  liquors  in  the  original 
packages  in  which  they  were  im- 
ported, under  a  State  law  which,  in 
so  far  as  it  prohibits  such  sales,  is  in 
violation  of  the  interstate  commerce 
clause  of  the  Federal  Constitution, 
since  such  proceedings  are  an  inter- 
ference with  complainant's  property 
rights  under  the  Constitution,  for 
which,  as  provided  by  Rev.  St.  U.  S. 
§  1979,  an  action  at  law  or  suit  in 
equity  may  be  maintained.  Schand- 
ler  Bottling  Co.  v.  Welch,  42  Fed. 
561.  But  see  Hemsley  v.  Myers.  45 
Fed.    283. 

83.  Fincke  v.  Police  Commis- 
sioners, 66  How.  Prac.  (N.  Y.)  318; 
Murphy  v.  Board  of  Police,  11  Abb. 
N.  C.  (N.  Y.)  337;  Examine  Babang 
v.  Bank  of  Montreal,  N.  B.  Eq.  Cas. 


117 


§  00 


Jurisdiction. 


And  a  court  of  equity  will  not  interpose  by  injunction  to  protect  a 
person  from  irreparable  injury,  through  the  threatened  publication 
of  a  libel,  or  the  commission  of  some  other  like  crime,  for  that 
would  deprive  accused  persons  of  trial  by  jury.84 

§  60.  Same  subject;  illegal  ordinance  or  statute. — An  injunc- 
tion will  not  be  granted  to  prevent  the  enforcement  by  criminal 
proceedings  of  an  alleged  unlawful  municipal  ordinance;85  for 
should  the  plaintiff  be  injured  by  its  enforcement,  ho  has  redress 
at  law  by  an  action  for  damages  ;86  and  if  he  should  violate  it,  its 
validity  would  be  tested  under  an  indictment  against  him.87  Crim- 
inal enactments  of  the  State  legislative  bodies  are  also  subject  to 
the  rule  that  prosecutions  thereunder  will  not  be  restrained  by 
injunction.88  This  rule  that  an  injunction  will  not  be  granted  to 
restrain  prosecutions  under  an  alleged  illegal  ordinance  or  statute 
has  been  applied  in  the  case  of  an  ordinance  forbidding  the  playing 


524.      See,    also,    Brown    v.    City    of 
Birmingham,   (1904)   37  So.   173. 

84.  Carleton  v.  Rugg,  149  Mass. 
550,  22  S.  E.  55-;  Boston  Diatite  Co. 
v.  Florence  Mf'g  Co..  114  Mass.  69; 
Brandreth  v.  Lance,  8  Paige,  (N.  Y.) 
24;  Kidd  v.  Horry,  28  Fed.  773; 
Fleming  v.  Newton,  1  H.  L.  Cas.  363, 
376. 

85.  United  States. — Camden  Inter- 
state R.  Co.  v.  Catlettsburg,  129  Fed. 
421. 

Alabama. — Bessemer  v.  Bessemer 
Waterworks,  (Ala.  1907")  44  So.  663; 
Montgomery  v.  West,  (Ala.  1906)  40 
So.  215. 

Colorado. — Denver  v.  Beede,  25 
Colo.  172,  54  Pac.  624. 

Georgia. — Paulk  v.  Sycamore,  104 
Ga.  24,  30  S.  E.  417,  41  L.  R.  A.  772. 

Iowa. — Ewing  v.  Webster  City,  103 
Iowa,  226,  72  N.  W.  511. 

North  Carolina. — Scott  v.  Smith, 
121  N.  C.  94,  28  S.  E.  64;   Wardens 


St.  Peter's  Episcopal  Church  v.  Wash 
ington,  109  N.  C.  21,  13  S.  E.  700. 

Oklahoma. — Golden  v.  Guthrie,  3 
Okla.  128,  41  Pac.  350. 

The  judicial  enforcement  of  a 
penal  ordinance  can  not  be  en- 
joined. Canon  City  v.  Manning 
(Colo.  S.  C.  1908),  95  Pac.  536. 

86.  Cohen  v.  Commissioners,  77 
N.  C.  2. 

87.  Wardens  St.  Peter's  Episcopal 
Church  v.  Commissioners,  109  N.  C. 
21,  13  S.  E.  700.  See,  also,  Denver  v. 
Beede,  25  Colo.  172,  54  Pac.  624. 

88.  Paulk  v.  Sycamore,  104  Ga.  24, 
30  S.  E.  417,  41  L.  R.  A.  772;  Ewing 
v.  Webster  City,  103  Iowa,  226,  72 
N.  W.  511;  Littleton  v.  Burgess 
(Wyo.   1905),  82   Pac.  864. 

Federal  court  has  no  jurisdic- 
tion to  enjoin  criminal  prosecution 
for  violation  of  a  State  law  in  a 
State  court.  State  v.  Southern  Ry. 
Co.   (N.  C.  1907),  59  S.  E.  570. 


118 


JURISDICTION. 


§60a 


of  baseball  or  football  within  the  corporate  limits;89  an  ordinance 
making  it  a  misdemeanor  to  conduct  an  auction  without  a  license,90 
and  a  statute  as  to  the  catching  of  fish.91 

§  60a.  Same  subject ;  qualification  of  rule. — Although  it  is  a 
general  rule  that  a  court  of  equity  will  not  restrain  the  prosecution 
of  criminal  proceedings  or  the  commission  of  a  criminal  act,92  yet 
it  is  also  true  that  a  court  of  equity  is  not  divested  of  its  jurisdic- 
tion to  prevent  an  act  by  the  mere  fact  that  such  act  is  criminal. 
If  it  also  appears  that  the  act  will  result  in  a  violation  of  property 
rights  and  that  the  party  aggrieved  has  no  other  adequate  remedy 
for  the  prevention  of  irreparable  injury  an  injunction  may  be 
granted  restraining  its  commission.93     So  the  Supreme  Court  of 
Mississippi,  in  adherence  to  the  general  rule,  has  decided  that  an 
injunction  will  not  lie  at  the  instance  of  a  tenant  to  restrain  a 
criminal  prosecution  by  a  landlord  for  alleged  trespass;  but  at  the 
same  time  recognized  the  existence  of  many  cases  proceeding  on  a 
clear  and  obvious  distinction,  in  which  courts  of  equity  have  en- 
joined acts  affecting  property  rights,  though  such  acts  might  also 


89.  Scott  v.  Smith,  121  N.  C.  94, 
28  S.  E.  64. 

90.  Golden  v.  Guthrie,  3  Okla. 
128,  41  Pac.  350. 

91.  Osborn  v.  Charlevoix  Circuit 
Judge,  114  Mich.  655,  72  N.  W.  982. 

92.  See  §§  58-60  herein. 

93.  Alabama. — Port  of  Mobile  v. 
Louisville  &  N.  R.  Co.,  84  Ala.  115, 
4  6o.  106. 

Georgia. — See  O'Brien  v.  Harris, 
105  Ga.  732,  31  S.  E.  745. 

Massachusetts. — Vegelahn  v.  Gunt- 
ner,  167  Mass.  92,  44  N.  E.  1077,  35 
L.  R.  A.  722. 

Missouri. — Hamilton  Brown  Shoe 
Co.  v.  Saxey,  131  Mo.  212,  32  S.  W. 
1106. 

Ohio. — Shaw  v.  Interstate  Sav.,  L. 
&  T.  Co.,  5  Ohio  N.  P.  411. 

Texas. — Manor  Casino  v.  State 
(Civ.  App.),  34  S.  W.  76;   Ex  parte 


Allison    (Tex.    Cr.    1905),    90   S.    W. 
492. 

West  Virginia. — Fellows  v.  Charles- 
ton  (W.  Va.  1907),  59  S.  E.  623. 

Wyoming. — Littleton  v.  Burgess 
(1905),  82  Pac.  864. 

England. — Springhead  Spinning  Co. 
v.  Riley,  L.  R.  6  Eq.  551,  558. 

See  Rhodes  &  J.  Mf'g  Co.  v.  State, 
74  Fed.  721. 

Where  property  rights  will  be 
destroyed  or  greatly  impaired  by 
criminal  persecutions  under  a  void 
law  or  ordinance  it  is  decided  that 
equity  may  interfere  by  injunction. 
New  Orleans  Baseball  &  A.  Co.  v. 
New  Orleans,  118  La.  228,  42  So.  784, 
citing  Dobbins  v.  Los  Angeles,  195 
U.  S.  223,  25  S.  Ct.  18,  49  L.  Ed. 
169. 

The  exception  to  the  rule  that 
a  court  of  equity  has  no  jurisdiction 


119 


§60a 


Jurisdiction. 


be  ground  for  indictment.97  In  this  connection  it  is  said  hy  the 
United  States  Supreme  Court:  "  It  is  objected  that  it  is  outside 
of  the  jurisdiction  of  a  court  of  equity  to  enjoin  the  commission 
of  crime.  This,  as  a  general  proposition,  is  unquestioned.  A 
chancellor  has  no  criminal  jurisdiction.    Something  more  than  the 


to  restrain  criminal  proceedings  are 
said  to  be  where  the  equity  proceed- 
ings are  instituted  by  a  party  to  a 
suit  already  pending  before  the  court, 
and  are  in  the  nature  of  ancillary  pro- 
ceedings. Prout  v.  Starr,  188  U.  S. 
637,  23  S.  Ct.  398,  47  L.  Ed.  584,  or 
where  the  complainant  has  acquired 
property  rights  which  by  the  enforce- 
ment of  the  criminal  laws  enacted 
thereafter  would  be  destroyed  and 
rendered  worthless.  Logan  v.  Postal 
Teleg.  &  C.  Co.,  157  Fed.  570,  citing 
Camden  Interstate  Ry.  Co.  v.  Cat- 
tlesburg,   129  Fed.  521. 

97.  Crighton  v.  Dahmer,  70  Miss. 
612,  13  So.  237,  per  Cooper,  J.-  "A 
somewhat  extended  examination  of 
the  approved  text  writers  and  of 
judicial  decisions  has  disclosed  no 
suggestion  among  the  writers  that 
the  jurisdiction  invoked  may  be  ex- 
ercised by  the  courts  of  equity,  nor 
have  we  found  a  decided  case  by 
which  it  is  upheld,  other  than  two 
cases  decided  by  the  judges  of  the 
District  Courts  of  the  United  States, 
siting  in  equity  upon  the  circuit,  in 
which  the  jurisdiction  of  equity  to 
enjoin  criminal  prosecutions  has  been 
pressed  to  great,  and,  as  we  think, 
unwarrantable  lengths.  The  cases  to 
which  we  refer  are  Bottling  Co.  v. 
Welch,  42  Fed.  561,  and  Lottery  Co. 
v.  Fitzpatrick,  3  Woods,  222.  In  the 
first  of  these  cases  prosecutions  under 
a  State  law  against  unlawful  retail- 
ing were  enjoined  upon  the  ground 
that  the  complainant  was  engaged  in 


interstate  commerce,  and  in  the  other 
p/oaecution  under  a  statute  of 
Louisiana,  forbidding  the  vending  of 
lottery  tickets  on  the  drawing  of  a 
lottery,  on  the  ground  that  the  State 
by  contract  with  the  complainant  had 
granted  to  it  the  right  to  do  the  for- 
bidden act.  In  neither  case  wa?  there 
a  pending  suit  involving  property 
rights,  but  the  bill  in  each  was  ex- 
hibited for  the  primary  and  original 
purpose  of  enjoining  criminal  prose- 
cutions in  the  State  court,  and  neces- 
sarily involved  the  power  and  juris- 
diction of  a  court  of  equity  to  draw 
to  itself  the  investigation  of  the  guilt 
or  innocence  of  the  complainant  of 
the  offense,  which  was  or  would  be 
the  question  for  investigation  of  the 
courts  of  the  State  having  jurisdic- 
tion thereof.  We  think  no  English 
case  can  be  found  of  modern  times, 
and  no  case  in  the  United  States, 
other  than  the  two  above  noted,  in 
which  a  court  of  equity  has  enjoined 
the  prosecution  of  criminal  proceed- 
ings. In  Mayor,  etc.,  v.  Pilkington,  2 
Atk.  302,  the  complainants  had  ex- 
hibited their  bill  in  chancery  to  es- 
tablish their  sole  right  of  fishery  in 
the  river  Ouse.  While  the  suit  was 
pending  they  caused  the  agent  of  the 
defendant  to  be  indicted  in  the  Ses-  j 
sions  at  York,  where  there  were 
judges,  for  breach  of  the  peace  in 
fishing  in  their  liberty.  On  motion 
of  the  defendant,  Lord  Chancellor 
Hardwicke  made  an  order  restraining 
the  plaintiff  from  proceeding  at  the 


120 


Jurisdiction. 


§60 


threatened  commission  of  an  offense  against  the  laws  of  the  land 
is  necessary  to  call  into  exercise  the  injunctive  powers  of  the  court. 
There  must  be  some  interferences,  actual  or  threatened,  with  prop- 


Sessions  till  the  hearing  of  the  cause. 
In  Kerr  v.  Corporation  of  Preston,  6 
Ch.  Div.  467,  Jessel,  M.  R.,  declared 
that  with  the  exception  of  Mayor  v. 
Pilkington,  there  was  no  instance  in 
which   a   court   of   equity    had   inter- 
fered in  criminal  cases,  and  that  in 
Saull   v.  Browne,  L.  R.   10  Ch.  App. 
64,    he   had    declined   to    follow    that 
'  doubtful  decision,'  and  on  appeal  his 
decision    was    affirmed.       Where     an 
officer    of    a    court    acting   under    its 
direction     tore     down     some     houses 
which  were  the  subject  of  litigation, 
one  of  the  parties  to  the  suit  was  re- 
strained  from    proceeding   criminally 
against    him.      Turner    v.    Turner,    2 
Eng.  Law  &  Eq.  130.    The  vice  chan- 
cellor, Lord  Cranworth,  declared  the 
distinction  to  be  an  obvious  one,  for 
while   the   court  had  no  jurisdiction 
over    an    indictment     in   general,   as 
over    a    mere    civil    proceeding,    yet, 
when    a   court   made    an   order    in    a 
cause  over  which  it  had  jurisdiction, 
its  execution  could  not  be  made  the 
ground  of  a  criminal  prosecution  by 
one    of    the    parties,    for    the     officer 
would  be  punished  by  the  court  if  he 
failed  to   comply  therewith.     Mayor, 
etc.    v.     Pilkington     and    Turner     v. 
Turner    are    the    only    English    cases 
with    which    we    are    acquainted    in 
which    the    prosecution    of    criminal 
proceedings  has  been  restrained,  and 
in  each  the  relief  was  granted  by  a 
mere  order  of  the  court  acting  upon 
parties   to   a   pending  suit   in   which 
the  court  was  proceeding,  and  not  by 
injunction  under  the  seal  of  the  court. 
In  Saull  v.  Browne,  supra,  the  court 
refused  to  make  an  order  restraining 


one  of  the  parties  from  at  the  same 
time  prosecuting  a  criminal  proceed- 
ing.     As    against    general    criminal 
prosecutions,     relief     has     uniformly 
been  refused.     Montague  v.  Dudman, 
2     Ves.     Sr.     396;      Holderstaffe     v. 
Saunders,  6  Mod.    16;   Attorney-Gen- 
eral   v.    Cleaver,    18    Ves.    211.      The 
Supreme  Court  of  the  United  States, 
in  Re  Sawyer,  124  U.  S.  200,  8  Sup. 
Ct.  Rep.  482,  31  L.  Ed.  402,  reviewed 
the  decisions  in  England  and  America, 
and  declared  that  there  was  no  juris- 
diction in  chancery  to  enjoin  prosecu- 
tions  for    crime,   except   in   cases    in 
which  the  order  was  made  to  restrain  a 
party  to   a  suit  already   pending  be- 
fore the  court,  and  to  try  the  same 
right  that  is  in  issue  there.    Sawyer, 
who  had  been  arrested  for  contempt 
of  the  injunction  of  a  Federal  court, 
was    discharged    on    habeas    corpus, 
upon  the  ground  of   an   entire   want 
of   power   in   the   court   to   grant   the 
injunction.     There  are  many  cases  to 
be  found  proceeding  upon  an  obvious 
and  clear  distinction  in  which  courts 
of  equity  have  enjoined  acts  affecting 
property  rights,  notwithstanding  the 
fact    that    such    acts    might    also    be 
ground  for  indictment.     To  this  class 
are  to  be  assigned  the  cases  of  Em- 
peror of  Austria  v.  Day,  3  DeG.,  F. 
&   J.   217;    Springhead    Spinning   Co. 
v.  Riley,  L.  R.  6  Eq.  551.    In  the  lat- 
ter case   the   chancellor   said:      'The 
truth   I   apprehend  is  that  the   court 
will  interfere  to  prevent  acts  amount- 
ing to  crime  if  they  do  not  stop  at 
crime  but  also  go  to  the  destruction 
or  deterioration  of  the  value  of  the 
property.'     To  the  same  class  belong 


121 


§60 


Jurisdiction. 


orty  or  rights  of  a  pecuniary  nature,  but  when  such  interferences 
appear  the  jurisdiction  of  a  court  of  equity  arises,  and  is  not 
destroyed  by  the  fact  that  they  are  accompanied  by  or  are  them- 
selves violations  of  the  criminal  law.9S  So  the  fact  that  the  per- 
petrator of  a  nuisance  is  amenable  to  the  provisions  and  penalties 
of  the  criminal  law  is  not  an  answer  to  an  action  against  him  by  a 
private  person  to  recover  for  an  injury  sustained  and  for  an  in- 
junction against  the  continued  use  of  his  premises  in  such  a  man- 
ner.99 So  where  the  owner  of  a  vacant  lot  wished  to  improve  it  but 
could  not  erect  a  building  thereon  which  would  be  available  for  a 
lawful  purpose  owing  to  the  fact  that  the  adjoining  building  was 
used  for  a  house  of  prostitution  it  was  decided  that  an  injunction 
against  the  further  use  of  the  premises  for  such  a  purpose  would 
be  granted.1 


numerous  decisions  which  rest  upon 
the  same  principle,  which  is  clear 
and  easily  distinguishable  from  that 
of  enjoining  the  ordinary  criminal 
prosecutions  which  affect  the  prop- 
erty rights  more  or  less  indirectly, 
and  in  which  no  jurisdiction  can  be 
taken  in  courts  of  equity.  In  the 
cases  of  Bottling  Co.  v.  Welch,  42 
Fed.  562,  and  Lottery  Co.  v.  Fitz- 
patrick,  authorities  for  the  exercise 
of  the  jurisdiction  in  the  one  class 
were  cited  as  upholding  it  in  the 
other,  but  it  is  notable  that  in 
neither  case  was  a  decision  cited, 
either  English  or  American  in  which 
the  precise  point  involved  had  been 
ruled  in  favor  of  the  jurisdiction.  In 
Montague  v.  Dudman,  2  Ves.  Sr.  396, 
Lord  Chancellor  Hardwicke  declared 
he  was  unable  to  discover  a  prece- 
dent for  the  exercise  of  the  power, 
and  said:  'I  will  go  by  Littleton's 
rule,  that  it  is  a  good  argument,  an 
action  lies  not,  because  one  was  never 
brought.  I  never  knew  a  bill  of  this 
kind,  and  therefore  will  not  make  the 
precedent.'  There  are  a  few  cases  in 
which  the  enforcement  of  void  muni- 


cipal ordinances,  the  execution  of 
which  directly  affected  property 
rights,  have  been  enjoined,  and  crim- 
inal prosecutions  before  the  munici- 
pal authorities  restrained.  City  of 
Atlanta  v.  Gate  City  Gaslight  Co.,  71 
Ga.  106;  Shinkle  v.  City  of  Coving- 
ton, 83  Ky.  420.  But  with  the  ex 
ception  of  Bottling  Co.  v.  Welch  and 
Lottery  Co.  v.  Fitzpatrick,  we  have 
found  no  decisions  of  any  court  that 
a  bill  in  equity  may  be  exhibited  for 
the  single  purpose  of  enjoining  crim- 
inal prosecutions,  and  against  these 
decisions  stand  the  unbroken  deci- 
sions of  all  courts  of  authority." 

98.  In  re  Debs,  158  U.  S.  564,  593, 
15  Sup.  Ct.  900,  39  L.  Ed.  1092.  Per 
Mr.  Justice  Brewer. 

99.  Cranford  v.  Tyrrell,  128  N. 
Y.  341,  28  N.  E.  514.  See  also  Minke 
v.  Hopeman,  87  111.  450;  People  v.  St. 
Louis,  5  Gilm.  351;  Ewell  v.  Green- 
wood, 26  Iowa,  377;  Carleton  v. 
Rugg,  149  Mass.  550;  Attorney-Gen- 
eral v.  Hunter,  1  Dev.  Eq.  12. 

1.  Dempsie  v.  Darling,  39  Wash. 
125,  81  Pac.  152. 


122 


Jurisdiction. 


§61 


§  61.  Injunctive  jurisdiction  of  courts  of  last  resort. — These 
appellate  courts  have  no  original  jurisdiction  of  injunctions  unless 
vested  with  it  by  the  constitutions  of  their  respective  States,2  but 
in  a  large  number  of  States  power  to  issue  injunctions  has  either 
been  conferred  directly  by  the  constitution  or  by  the  Legislature 
in  the  exercise  of  authority  conferred  upon  it.3  In  the  absence, 
however,  of  this  constitutional  authority,  the  Legislature  cannot 
authorize  them  to  issue  injunctions.4  The  Colorado  constitution 
confers  on  the  Supreme  Court  of  that  State  original  jurisdiction 
to  issue  injunctions,5  but  only  in  cases  of  publici  juris  in  which  the 
interest  of  the  State  is  directly  involved.6  Under  this  provision  it 
has  been  decided  that  a  conspiracy  to  prevent  an  election  may  be 
enjoined  by  the  Supreme  Court  in  a  suit  by  the  State  on  relation 
of  the  Attorney-General.7  The  Pennsylvania  Statutes  of  1836 
and  1857  enact  that  "  the  Supreme  Court  when  sitting  in  banc 
in  the  city  of  Philadelphia  and  the  Court  of  Common  Pleas  of  the 
said  city  and  county  shall  have  the  power  and  jurisdiction  of  courts 
of  chancery  so  far  as  relates  inter  alia  to  the  prevention  or  restraint 


2.  Arkansas. — Jones  v.  Little 
Rock,  25  Ark.  284;  Ex  parte  Jones, 
2  Ark.  93. 

Georgia. — Cubbedge  v.  Hazelhurst, 
A2,  Ga.  124. 

Illinois. — Campbell  v.  Campbell,  22 
111.  664. 

Iowa. — Reed  v.  Murphy,  2  G. 
Greene,  568. 

Kentucky. — See  Dupoyster  v.  Fort 
Jefferson  I.  Cos.  Receiver,  28  Ky. 
Law  Rep.  504,  89  S.  W.  509. 

Missouri. — Lane  v.  Charles,  5  Mo. 
285. 

Ohio.— Kent  v.  Mahaffy,  2  Ohio  St. 
498. 

But  see  Davis  v.  Tuscumbia  C.  & 
D.  R.  Co.,  4  Stew.  &  P.  421;  Cooper 
v.  Mineral  Point,  34  Wis.  181. 

3.  Alabama.— Civ.  Code  1907,  § 
4512. 

Colorado. — Const.    Art.    VI,    §    3; 
Mills  Annot.  Stats.  1904,  §  375,  p.  18. 


Indiana. — Thornton's  Annot.  Civ. 
Code,   1907,   §   961. 

Iowa.— Code  1897,  §  4357. 

Maine.— Rev.  Stats.  1903,  ch.  79, 
§  35,  p.  683. 

Mississippi. — Code   1906,   §   992. 

Montana. — Code  Civ.  Proc.  1895, 
§  19. 

New  Hampshire. — Pub.  Stats.  & 
Sess.  Laws,   1901,  pp.  669,  670. 

Ohio. — Bates  Annot.  Stats.  1905, 
§  5571. 

Wisconsin. — Const.   Art.   VII,    §    3. 

4.  Campbell  v.  Campbell,  22  111. 
664;  followed  in  Bryant  v.  People, 
71  111.  32. 

5.  Const.  Art.  VI,  §  3.  See  Mills' 
Annot.  Stats.  Colo.  1904,  §  375,  p.  18. 

6.  Wheeler  v.  Irrigation  Co.,  9 
Colo.  248. 

7.  People  v.  Tool  (Colo.  1905),  86 
Pac.  224. 


123 


§  61  Jurisdiction. 

of  the  commission  or  continuance  of  acts  contrary  to  law  and  preju- 
dicial to  the  interests  of  the  community  or  the  rights  of  indi- 
viduals." Under  this  enactment  the  Supreme  Court  has 
jurisdiction  of  trespasses  and  nuisances  which  threaten  to  become 
permanent,8  but  the  general  rule  is  that  that  court  will  take  original 
jurisdiction  of  injunctions  only  in  extreme  cases,  and  will  refuse 
to  take  it  where  a  party  could  have  had  his  remedy  by  appeal  to 
that  court.9  The  Florida  Supreme  Court  has  no  original  jurisdic- 
tion of  the  writ  of  injunction.  In  equity  causes  it  has  only  appel- 
late jurisdiction,  but  the  constitution  of  1885  empowered  it  to  issue 
"  all  writs  necessary  or  proper  to  the  complete  exercise  of  its  juris- 
diction," and  under  that  power  it  has  probably  jurisdiction  to  issue 
a  temporary  injunction  to  operate  pending  the  appeal  in  a  cause 
before  it  ;19  generally,  however,  this  power  should  not  be  exercised 
by  the  Supreme  Court  but  left  to  the  discretion  of  the  chancellor.11 
Formerly  in  Illinois  the  Supreme  and  Circuit  Courts  in  term 
time,  and  any  judge  thereof  in  vacation,  had  power  to  grant  injunc- 
tions;12 but  the  act  of  1874  revising  the  law  of  injunctions  enacts 
"  that  the  Superior  Court  of  Cook  county  and  the  Circuit  Courts 
in  term  time  and  any  judge  thereof  in  vacation  shall  have  power 
to  grant  writs  of  injunction ;"  and  if  no  judge  is  within  the  county 
and  available,  masters1  in  chancery  may  grant  the  writs.13  In 
Wisconsin  the  Supreme  Court  of  the  State  has  been  decided  to 
have  original  prerogative  jurisdiction  to  issue  an  injunction  in  an 
action  brought  by  the  Attorney-General  in  the  name  of  the  State 
to  restrain  the  Secretary  of  State  from  issuing  or  publishing 
notices  of  an  election  of  members  of  the  Legislature  under  an 
apportionment  act  alleged  to  be  invalid,14  but  in  an  early  case  in 

8.  Walters  v.  McElroy,  151  Pa.  St.  12.  Welch  v.  Byrns,  38  111.  20,  24. 
549,  25  Atl.  125.  13.  111.    Rev.    Stats.    1903,   ch.   69, 

9.  Clark   v.   Borough  of   Washing-       §  1,  p.  1041. 

ton,  145  Pa.  St.  566,  22  Atl.  989.  14.  State  v.  Cunningham,  81  Wis. 

10.  Cohen  v.  L'Engle,  24  Fla.  542;       440,  51  N.  W.  724;  Attorney-General 
see  Jewett  v.  Dringer,  29  M.  J.  Eq.  199.       v.  Railroad  Companies,  35  Wis.  425, 

11'.  Cohen  v.  L'Engle,  24  Fla.  542,  512;    Cooper    v.    Mineral    Point,    34 

547;    Hart  v.   Mayor,   3   Paige,   386;  Wis.  181.     See  Wis.  Const.  Art.  VII, 

Monkhouse   v.    Bedford    Corporation,  §  3. 
17  Ves.  380. 


124 


JURISDICTION. 


§62 


that  State  it  is  held  that  the  court  of  last  resort  has  no  jurisdiction 
of  injunctions  in  private  suits  between  private  parties  proceeding 
on  private  right  or  wrong.15  And  a  similar  doctrine  is  affirmed 
in  early  case  in  Missouri.16  And  the  Appellate  Court  of  Indiana 
was  given  no  original  jurisdiction  of  injunctions  under  the  statute 
of  1891  which  authorized  that  court  to  issue  injunctions  "  in  aid 
of  the  exercise  of  its  jurisdiction  or  to  enforce  its  judgments  or 
orders."  17  The  Supreme  Court  of  this  State  was  given  jurisdic- 
tion by  a  similar  clause  which  provided  that  it  might  issue  injunc- 
tions "  in  term  time  when  necessary  and  proper  for  the  due  exer- 
cise of  the  jurisdiction  and  powers  of  such  court."  18 

§  62.  Same  subject. — In  1849  it  was  decided  that  the  power 
of  the  Maine  Supreme  Court  to  issue  writs  of  injunction  was 
derived  from  statutes  and  limited  to  the  equity  jurisdiction  given 
to  it  by  statute,19  and  that  court  does  not  take  jurisdiction  in  equity 
where  the  plaintiff  has  a  plain  and  adequate  remedy  in  an  action 


15.  Attorney-General  v.  Railroad 
Companies,  35  Wis.   425,  520. 

16.  State  v.  Stewart,  32  Mo.  379; 
State  v.  Lawrence,  38  Mo.  535;  Fos- 
ter v.  State,  41  Mo.  61;  Vail  v. 
Pinning,  44  Mo.  210;  State  v.  Vail, 
53  Mo.  97.  In  Vail  v.  Dinning,  44 
Mo.  210,  214,  the  court  said:  "It  is 
very  plain  that  were  it  not  for  the 
express  exceptions  contained  in  the 
constitution,  this  court  could  exercise 
no  original  jurisdiction.  As  it  is,  its 
power  is  confined  to  certain  specified 
writs,  and  others  of  a  like  remedial 
nature.  ...  In  Lane  v.  Charless, 
5  Mo.  285,  it  was  held  that  an  in- 
junction was  not  one  of  the  original 
remedial  writs  provided  for." 

17.  Louisville  N.  A.  &  C.  R.  Co. 
v.  Malott,  6  Ind.  App.  545,  33  N.  E. 
1009.  A  stone-cutter  sued  an  ad- 
ministratrix for  work  done  on  a 
monument  under  an  alleged  contract 
with  the  deceased.  The  adminis- 
tratrix   denied   the    existence   of   the 


contract,  but  judgment  went  against 
her  on  that  issue,  and  she  appealed 
to  the  appellate  court.  Pending  the 
appeal  she  petitioned  that  court  to 
enjoin  the  stone-cutter  from  erecting 
the  monument.  Acts  1891,  p.  42, 
creating  the  appellate  court,  only 
authorizes  it  (section  12)  to  issue 
injunctions  "  in  aid  of  the  exercise 
of  its  jurisdiction,  or  to  enforce  its 
judgments  or  orders."  Held,  that  the 
erection  of  the  monument  could  in 
no  wise  affect  the  court's  decision  of 
the  appeal  or  interfere  with  the  en- 
forcement of  the  judgment  to  be 
rendered,  and  hence  there  was  no 
authority  to  issue  the  injunction. 
Sheeks  v.  Fillion  (Ind.  App.),  29  ST. 
E.  443. 

18.  Thornton's    Annot.    Civ.    Code, 
1907,  §  9G1. 

19.  Smith  v.  Ellis,  29  Me.  422. 
As  to  power  of   Supreme  Judicial 

Court    to   issue   injunctions,   see   Me. 
Rev.  Stats.  1903,  ch.  79,  §  35,  p.  683. 


125 


§  62  Jurisdiction. 

at  law.20  By  the  Maine  statute  of  March  17,  1893,  when  in  an 
action  at  law  in  the  Supreme  Court  it  appeared  that  the  rights  of 
the  parties  could  be  better  enforced  by  a  decree  in  equity,  the  court 
was  given  power  to  strike  out  the  pleadings  at  law  and  require  the 
parties  to  plead  in  equity;  to  determine  the  cause  in  equity;  to 
make  such  restraining  orders  as  might  be  necessary  to  preserve 
oqui table  rights,  and  to  issue  injunctions  according  to  the  usual 
practice  of  courts  of  equity.21  In  South  Carolina  it  is  decided 
that  the  Supreme  Court  has  the  power  to  issue  writs  or  orders  of 
injunction,  and  that  such  power  is  not  restricted  to  cases  pending 
in  the  Supreme  Court,  either  in  its  original  or  appellate  jurisdic- 
tion.22 Under  an  earlier  constitutional  provision  in  this  State  it 
was  decided  that  the  power  conferred  on  the  Supreme  Court  to 
grant  injunctions  did  not  authorize  it  to  dissolve  a  preliminary 
injunction  granted  by  the  Circuit  Court  in  an  action  on  appeal 
from  the  latter  court.23  Under  the  Virginia  constitution  the 
Supreme  Court  of  Appeals  has  no  original  jurisdiction  to  grant 
injunctions.  And  under  the  Virginia  Code  of  1887,  section  3438, 
that  court,  sitting  in  banc  had  no  such  jurisdiction,  but  one  of  its 
judges  had  where  an  injunction  had  been  refused  by  the  inferior 
courts.24  The  Massachusetts  statute  of  1887,  enacting  that  the 
Supreme  Judicial  Court  and  Superior  Court  shall  have  equity 
jurisdiction  to  enjoin  and  abate  places  used  for  prostitution, 
gambling  or  the  illegal  sale  of  liquors  as  a  common  nuisance,  has 
been  upheld  as  constitutional  because  it  is  directed  against  the 
property  only  of  the  offender  and  not  against  his  person.25    Similar 

20.  Porter  v.  Frenchman's  Bay  &  and  the  right  to  correct  errors  at 
M.  D.  L.  &  W.  Co.,  84  Me.  195.,  24  law,  also  the  power  to  issue  writs  of 
Atl.  814;  Alley  v.  Chase,  83  Me.  537,  injunction,  etc.,  gives  such  court  no 
22  Atl.  393;  Bachelder  v.  Bean.  76  power  to  dissolve  an  injunction 
Me.  370;  Milliken  v.  Dockray,  80  Me.  granted  by  the  Circuit  Court.  State 
82    13  Atl.   127.  v-  Westmoreland,  27  S.  C.  625,  7  S. 

21.  Maine    Practice   Act    of    1893.  E.  256. 

22.  Salinas  v.  Aultman,  49  S.  C.  24.  Fredenheim  v.  Rohr,  87  Va. 
378,  27  S.  E.  407,  construing  Const.  764,  13  S.  E.  193,  266;  Mayo  v. 
1895,  art.  V,  §  4.  Haines,    2    Munf.     (Va.)     423;    Ran- 

23.  Const.  S.  C.  art.  4,  §  4,  grant-  dolph,  6  Randolph   (Va.),  194. 

ing  to  the  Supreme  Court  appellate  25.  Carleton   v.    Rugg,    149    Mass. 

jurisdiction  only  in  cases  of  chancery,      550,  22  N.  E.  55,  where  the  fallacy 

126 


Jurisdiction. 


63 


statutes  in  Kansas  and  Iowa  directed  against  and  to  enjoin  the 
liquor  nuisance  have  been  sustained.26  But  the  Supreme  Court  of 
Kansas  has  been  held  to  have  no  jurisdiction  of  an  injunction  to 
restrain  a  person  from  exercising  the  duties  of  county  attorney.27 

§  63.  Of  Supreme  Court  of  New  York. — The  Supreme  Court 
of  New  York  possesses  the  powers  and  general  jurisdiction  in  law 
and  equity  formerly  exercised  by  the  Supreme  Court  of  the 
Colony,  and  by  the  Court  of  Chancery  in  England  prior  to  July  4, 
1776,  subject  to  the  limitations  imposed  by  the  constitution  and 
laws  of  the  State,28  and  has  the  power  inherent  in  such  jurisdiction 
of  enjoining  the  execution  of  its  decrees  in  cases  of  injunctions 
pending  an  appeal  ;29  and  was  vested  by  the  constitution  of  1846 
with  jurisdiction  of  all  suits  and  proceedings  of  the  former  Court 
of  Chancery  of  the  State  which  was  abolished  in  1847.30  In  this 
State  the  Supreme  Court  justices  were  specially  authorized  by 


of  the  argument  that  the  statute  de- 
prived the  citizen  of  trial  by  jury  was 
thus  exposed:  "The  fallacy  of  the 
argument  lies  in  part  in  disregard- 
ing the  distinction  between  a  proceed- 
ing to  abate  a  nuisance  which  looks 
only  to  the  property  that  in  the  use 
made  of  it  constitutes  the  nuisance, 
and  the  proceeding  to  punish  an  of- 
fender for  the  crime  of  maintaining 
a  nuisance.  These  two  proceedings 
are  entirely  unlike.  The  latter  is 
conducted  under  the  provisions  of 
the  criminal  law  and  deals  only  with 
the  person  who  has  violated  the  law. 
The  former  is  governed  by  the  rules 
which  relate  to  property,  and  its  only 
connection  with  persons  is  through 
property  in  which  they  may  be  inter- 
ested. That  which  is  declared  by  a 
valid  statute  to  be  a  nuisance,  is 
deemed  in  law  to  be  a  nuisance  in 
fact  and  should  be  dealt  with  as  such. 
.  The  fact  that  keeping  a 
nuisance  is  a  crime  does  not  deprive 
a   court    of  equity   of   the   power    to 


abate  the  nuisance."  The  super- 
visory power  of  the  Supreme  Judicial 
Court  in  insolvency  matters,  given  by 
Pub.  St.  Mass.  ch.  157,  §  15,  cannot 
be  invoked  to  enjoin  the  proving  of 
claims  against  an  insolvent  estate,  or 
to  decide  the  terms  on  which  they 
may  be  proved,  before  they  have  first 
been  presented  to  and  passed  on  by 
the  court  of  insolvency.  Proctor  v. 
National  Bank,  152  Mass.  223,  25  N. 
E.  81. 

26.  Kansas  v.  Ziebold,  123  U.  S. 
623.  8  S.  Ct.  273,  31  L.  Ed.  205;  State 
v.  Crawford,  28  r^an.  726;  Littleton 
v.  Fritz,  65  Iowa,  488,  22  N.  W.  641. 

27.  Foster  v.  Moore,  32  Kan.  483, 
4  Pac.  850,  per  Curiam:  "Neither 
the  constitution  nor  statutes  give  the 
Supreme  Court  original  jurisdiction 
in  suits  for  injunction." 

28.  Code  Civ.   Pro.,   §  217. 

29.  Genet  v.  Delaware  &  H.  Canal 
Co.,  113  N.  Y.  472,  474,  21  N.  E.  390. 

30.  N.  Y.  Const.  1846,  art.  14,  §§ 
5-8. 


127 


§  64  Jurisdiction. 

the  statute  of  1882  to  grant  injunctions  against  banks  on  their 
refusing  to  pay  certain  demands.31  And  it  is  also  provided  by 
Code  in  New  York  that  when  a  duty  is  imposed  by  statute  upon 
a  State  officer,  or  board  of  State  officers,  an  injunction  order  to 
restrain  him  or  them,  or  a  person  employed  by  him  or  them,  from 
the  performance  of  that  duty,  or  to  prevent  the  execution  of  the 
statute,  shall  not  be  granted  except  by  the  Supreme  Court,  at  a 
term  thereof,  sitting  in  the  department  in  which  the  officer  or 
board  is  located,  or  the  duty  is  required  to  be  performed ;  and  upon 
notice  of  the  application  thereof  to  the  officer,  board,  or  other 
person  to  be  restrained.32 

§  64.  Of  Superior  and  City  Courts. — In  several  of  the  States 
jurisdiction  is  conferred  upon  the  Superior  Court  to  issue  injunc- 
tions.33 So  the  Superior  Court  of  Cook's  county,  Illinois,  is 
specially  authorized  to  grant  injunctions.34  And  the  Superior 
Court  of  the  city  of  New  York  had  chancery  powers  within  the 
city  of  New  York  co-extensive  with  those  of  the  Supreme  Court,35 
and  had  original  jurisdiction  to  grant  injunctions.36  The  Special 
Term  of  the  Superior  Court  also  had  power  to  enjoin  by  order  the 
operation  of  a  judgment  rendered  by  it  in  an  injunction  suit,  pend- 
ing an  appeal,  where  the  appeal  did  not  of  itself  relieve  the 
defendant  from  the  duty  of  immediate  obedience,  and  a  mere  order 
staying  proceedings  on  the  part  of  plaintiff  would  not  affect  that 
purpose.37    Under  the  North  Carolina  Code,  providing  that  judges 

31.  L.  1882,  ch.  409.  §  131.  in     like     manner     as     the     supreme 

32.  Code  Civ.  Proc.,  §  605.  court." 

33.  Thornton's  Annot.  Civ.  Code,  37.  Genet  v.  Delaware  &  H.  Canal 
Ind.  1907,  §  1228;  Iowa  Code,  1897,  Co.,  113  N.  Y.  472,  21  N.  E.  390, 
§§  262,  4357;  No.  Car.  Revisal  of  where  the  court  said:  "  The  judg- 
1905.  §  814.  ment   in  this  case   prohibits   the   de- 

34.  111.  Rev.  Stats.  1903,  ch.  69,  fendant  from  using  its  structures 
§  1    p.  1041.  on   the   plaintiff's   lands   in   the  way 

35.  Code  Civ.  Pro.  §  267.  in  which  it  had  been  accustomed  to 

36.  Code  Civ.  Pro.  §  267:  "  Tt  use  them  for  several  years,  and  from 
may  render  any  judgment  or  grant  depositing  culm  on  the  surface.  It 
either  party  any  relief  which  the  adjudges  the  right  as  claimed  by 
supreme  court  might  render  in  ?  like  the  plaintiff  and  denies  the  adverse 
case   and  may  enforce   its  mandates  claim  of  the   defendant.     The  judg- 

12S 


JUEISDICTION. 


§64 


of  the  Superior  Court  shall  have  jurisdiction  to  grant  injunctions 
and  issue  restraining  orders  in  all  civil  actions  and  proceedings 
authorized  by  law,  and  that  the  injunction  may  be  granted  at  the 
time  of  commencing  the  action,  or  at  any  time  afterwards  before 
judgment,  an  injunction  may  issue  in  an  action  before  service  of 
the  summons ;  and  notice  of  the  same  to  defendant  gives  the  court 
jurisdiction  of  him,  as  to  it.38  The  Georgia  Uniform  Procedure 
Act  of  1887  did  not  give  the  Superior  Court  any  greater  jurisdic- 
tion by  injunction  to  abate  nuisances  than  it  had  before  equity  and 
law  were  combined  in  that  court.39  And  in  a  later  case  in  this 
State  it  is  decided  that  the  Superior  Court  has  no  jurisdiction  to 
issue  an  injunction  restraining  the  custodian  of  a  will  from  offer- 
ing it  for  probat(-.39a  The  Superior  Court  of  Massachusetts  was 
specially  authorized  by  the  statute  of  1887  to  issue  injunctions 
for  the  abatement  as  nuisances,  of  places  for  gambling,  prostitu- 
tion and  the  illegal  sale  of  liquors.40     In  California  it  has  been 


ment  operates  of  its  own  force  and 
without  further  process,  as  a  pro- 
tection against  doing  the  act  en- 
joined. The  appeal  does  not  of  itself 
relieve  the  defendant  from  the  duty 
to  obey  the  judgment.  The  statute 
does  not  prescribe  any  method  by 
which  the  execution  of  a  judgnent 
can  be  stayed  in  a  case  like  this. 
Code  Civ.  Pro.  §§  1327  et  seq.  Nor 
would  a  mere  order  staying  proceed- 
ings by  the  plaintiff  enable  the  de- 
fendant to  prosecute  its  business  in 
violation  of  the  judgment.  Sixth 
Ave.  R.  Co.  v.  Gilbert  El.  R  Co., 
71  N.  Y.  430." 

38.  Fleming  v.  Patterson,  99  N. 
G,  404.  6  S.  E.  396. 

As  to  power  of  judges  of  superior 
court  to  issue  injunctions.  See  No. 
Car.  Revisal  of   1905,   §   814. 

39.  Broomhead  v.  Grant,  83  Ga. 
451.    10  S.  E.   116. 

39a.  Israel  v.  Wolf,  100  Ga.  339, 
28  S.  E.  109. 


40.  Carleton  v.  Rugg  149  Mass. 
550,  22  N.  E.  5o.  Mass.  St.  1883,  ch. 
223,  §  1,  providing  that  the  Superior 
Court  shall  have  original  and  con- 
current jurisdiction  with  the  Su- 
preme Judicial  Court  in  all  matters 
in  which  relief  in  equity  is  sought, 
with  all  the  powers  incident  to  such 
jurisdiction,  does  not  confer  on  the 
Superior  Court  the  authority  given 
the  Supreme  Judicial  Court  by  Pub. 
St.  ch.  102,  §  39,  to  issue  an  injunc- 
tion against  the  erection,  occupancy, 
or  use  of  a  building  as  a  stable  for 
more  than  four  horses  in  a  city  or 
town,  except  an  the  mayor  and  al- 
dermen or  selectmen  may  direct. 
Baldwin  v.  Wilberham,  140  Mass. 
459.  4  N.  E.  829.  And  St.  1890,  ch. 
395,  amending  Pub.  St.  ch.  102,  §  39, 
so  as  to  give  the  Superior  and  Su- 
preme Judicial  Courts  concurrent 
jurisdiction  to  enjoin  the  occupancy 
or  use  of  a  stable  in  a  city  or  town 
for  more  than  four  horses  without  a 


129 


§  65  Jurisdiction. 

decided  that  the  granting  of  an  injunction  restraining  the  peti- 
tioner in  a  divorce  proceeding  from  alienating  his  property  during 
the  pendency  of  the  action  is  within  the  jurisdiction  of  the 
Superior  Court  of  the  city  and  county  of  San  Francisco.41  Under 
the  act  creating  the  City  Court  of  Montgomery,  Alabama,  the  judge 
of  that  court  was  given  the  same  power  to  grant  injunctions  as  the 
circuit  judges,  or  the  chancellor.42 

§  C5.  Of  Circuit  Courts.— In  some  of  the  States  the  Circuit 
Courts  have  been  expressly  authorized  by  statute  to  issue  injunc- 
tions.43 Under  the  Illinois  Act  of  1874  revising  the  law  of 
injunctions  the  Circuit  Courts  in  term  time  and  any  judge  thereof 
in  vacation  were  given  injunctive  jurisdiction,  and  if  no  judge 
was  within  the  county  and  available,  masters  in  chancery  might 
grant  the  writ.44  A  circuit  judge  in  that  State  has  been  held  to 
have  the  power  to  grant  injunctions  to  operate  throughout  the 
State.40  But  in  Indiana  it  is  decided  that  where  in  attachment 
proceedings  in  one  county  an  order  is  made  for  the  sale  of  real 
estate  situated  in  another  county,  the  Circuit  Court  of  the  latter 
county  has  no  jurisdiction  to  enjoin  the  execution  of  such  order.46 
In  South  Carolina  it  was  early  decided  that  the  Circuit  Courts 

license,  such  jurisdiction  having  pre-  Maryland. — Pub.  Gen.  Laws,  1903, 

viously  resided  in  the  Supreme  Judi-  Art.    16,   §  83,  p.  200. 

cial  Court  alone,  does  not  confer  jur-  Michigan. — Comp.        Laws       1897, 

isdiction  on  the  Superior  Court  of  a  §  514. 

suit  pending  at  the  time  the  Amenda-  Mississippi. — Code   1906,   §  992. 

tory   Act  took   effect.     Langmaid   v.  Missouri. — Rev.  Stats.  1899,  §  3627. 

Reed,  159  Mass.  409,  34  N.  E.  593.  Ohio.— Bates'    Annot.    Stats.    1905. 

41.  In  re  White,  113  Cal.  282,  45  §  5571. 

Pac.  323.  Tennessee. — Annot.       Code       1896, 

42.  Ex  parte  Sayre,   95  Ala.  288,       §  6246. 

11    So.   378.  West  Virginia.— Annot.  Code  1906. 

43.  Alabama.— Civ.    Code,    1907,   §       §   4009. 

4512.  Wisconsin. — Const.  Art.  VII,  §  8. 

Arkansas.— Dig.     Stats.,     1894,     §  44.  Cothran's  111.  R.  S.   1889,  pp. 

3779.  795,  796. 

Florida.— Gen.  Stats.,  1906,  §  1859.  45.  Welch  v.  Byrns,  38  111.  20, 

Indiana. — Thorntoa's    Annot.    Civ.  46.  Scott  v.  Runner,   146  Ind.  12, 

Code,  1907,  §  961.  44  N.  E.  755. 

130 


Jurisdiction.  §  65 

have  power  to  issue  injunctions.47  Under  the  provision  of  the 
Virginia  Code,  §  3436,  that  jurisdiction  of  a  suit  for  injunction 
shall  be  in  the  Circuit  Court  of  the  county  in  which  the  act  or 
proceeding  is  to  be  done  or  is  doing  or  apprehended,  it  has  been 
decided  that  an  injunction  to  restrain  entry  on  land  cannot  be 
maintained  in  a  county  other  than  that  in  which  the  land  is  sit- 
uate.48 In  Maryland  by  the  law  of  1852  it  was  provided  that  the 
judges  of  the  several  judicial  circuits  and  the  judge  of  the  Circuit 
Court  of  Baltimore  shall  each  in  his  respective  circuit  have  the 
power  and  jurisdiction  which  the  Court  of  Chancery  formerly  had 
and  may  grant  injunctions  to  take  effect  in  any  part  of  his  circuit.49 
In  this  State  the  jurisdiction  of  the  Circuit  and  Common  Pleas 
Courts  over  insolvency  proceedings  is  of  a  limited  nature,  being 
prescribed  by  statute;  and  they  have  no  power  to  grant  injunctions 
in  such  proceedings,  except  in  the  single  instance  provided  for  by 
Act  1880,  ch.  172,  where  an  inquiry  is  instituted  to  determine  the 
insolvency  of  a  debtor,  and  it  is  desired  to  protect  the  property  in 
the  meantime.50  In  Alabama  the  judges  of  the  Circuit  Court  have 
been  authorized  by  statute  to  grant  writs  of  injunction  returnable 
into  the  Courts  of  Chancery  co-extensivcly  with  the  power  exer- 
cised by  the  chancellor,  and  under  the  Act  of  1863  creating  the 
City  Court  of  Montgomery,  the  judge  of  that  court  had  the  same 
power  to  issue  such  writs  as  the  Circuit  Court  judges.51  Under  the 
Kentucky  Code,  §  285,  providing  that  an  injunction  to  stay  pro- 
ceedings on  a  judgment  shall  be  granted  only  in  a  suit  brought  in 
the  court  where  the  judgment  was  rendered,  the  Circuit  Court 
has  been  held  to  have  no  jurisdiction  to  enjoin  the  sale  of  property 
under  an  execution  upon  a  judgment  of  a  justice  of  the  peace.52 
In  Michigan  the  circuit  judges,  and  each  injunction  master  within 

47.  State     v.     Westmoreland,     27       v.    Smart,  69  Md.   320,    14  Atl.   468, 
S.  C.  625,  7  S.  E.  256.  17  Atl.   1101;   Fishback  v.  Green,  87 

48.  Norfolk  &  W.  R.  Co.  v.  Postal       Ky.  107,  7  S.  W.  881. 

Tel.  Cable  Co.,  88  Va.  932,  14  S.  E.  51.  Ex  parte  Sayre,  95   Ala.  288, 

689.  11  So.  378. 

49.  L.   1852,  ch.  16  §§  1-4.  52.  Chesapeake,    etc.,    It.     Co.     v. 

50.  Paul   v.  Locust   Point  Co..   70  Reasor,  84  Ky.  369,  1  S.  W.  599. 
Md.  288,  17  Atl.  77.    See,  also,  Brown 

131 


M 


Jurisdiction. 


the  circuit  for  which  he  may  be  appointed,  shall  severally  have 
power  to  grant  injunctions  to  stay  proceedings  at  law.53  Where 
these  Circuit  Courts  are  not  vested  with  a  general  chancery  juris- 
diction, a  statute  conferring  the  power  to  grant  injunctions  upon 
a  judge  of  the  Circuit  Court  does  not  confer  the  same  power  upon 
the  court.54 

§  66.  Of  District  Courts. — Jurisdiction  is  conferred  upon  the 
District  Courts  in  several  States  to  grant  injunctions.55  In  New 
Mexico,  under  the  laws  of  1889,  a  district  judge  can  compel  can- 
vassers by  injunction  to  do  their  ministerial  duty  of  canvassing  the 
returns  and  declaring  the  results  of  elections,  and  may  enjoin 
them  from  issuing  certificates  of  election  pending  anterior  proceed- 
ings by  mandamus.50     In  Nebraska  it  is  decided  that  under  the 


53.  Mich.  Comp.  Laws,  1S97, 
§  514.  Office  of  injunction  master 
abolished  in  this  State  and  the  pow- 
ers possessed  by  him  conferred  upon 
circuit  commissioners.  See  Toledo  A. 
A.  &  N.  M.  R.  v.  Detroit  I,.  &  N. 
R.  R.  Cov  61  Mich.  11,  27  N.  W.  715, 
chapt.  37,  Mich.  Comp.  Laws,  1S97. 

54.  Cummings  v.  Des  Moines,  etc., 
R.  Co.,  36  Iowa,  173. 

55.  Arizona.— Rev.  Stat.  1001, 
§  2742. 

Ioiva.— Code  of  1897,  §  4357 

Kansas.— Gen.  Stats.  1905,  §  5134. 

Minnesota. — Rev.  Laws,  1905,  §  92. 

Montana. — Code  Civ.  Proc.  1895, 
§  41. 

Oklahoma. — Rev.  &  Annot.  Stats. 
1903.   §  4426. 

Texas. — Const.  Art.  5,  §  8,  as 
amended  Sept,  22,  1891. 

56.  Under  Laws  N.  M.  T  1889,  ch. 
117,  §  1,  providing  that  injunctions 
may  be  granted  in  aid  of  any  suit 
at  law  provided  that  such  suit  has 
been  begun,  it  is  competent  for  a 
district  judge,  on  whom  power  to 
compel    by   mandamus   the    board    of 


county  commissioners  to  canvass  all 
the  returns  of  any  election  is  con- 
ferred by  Laws  N.  M.  T.  1889,  ch. 
135,  §  13,  to  enjoin  the  commission- 
ers from  issuing  certificates  of  elec- 
tion pending  the  proceedings  by 
mandamus  which  have  been  insti- 
tuted before  the  injunction  was 
granted.  In  re  Sloan,  5  N.  M.  590, 
25  Pac.  930.  In  Hamilton  v.  Icard, 
112  N.  C.  589,  17  S.  E.  519,  Clark, 
J.,  said:  "The  jurisdiction  of  the 
application  for  an  injunction  till  the 
hearing  is  specifically  restricted  by 
Code,  8  336,  to  '  the  resident  judge 
of  the  district,  or  the  judge  assigned 
to  the  district,  or  holding  by  ex- 
change the  court i  of  the  district,'  or 
holding  a  special  term  in  the  county 
where  the  cause  is  pending.  Id. 
§  335.  It  is  further  provided  that, 
if  the  judge  before  whom  the  order 
is  made  returnable  fails  to  hear  it, 
it  shall  be  competent  for  any  judge 
resident  in,  or  assigned  to,  or  hold- 
ing by  exchange  the  courts  of  some 
adjoining  district  to  hear  it  upon 
giving  ten  days'  notice  to  the  parties 


132 


Jurisdiction.  §  GG 

Code  a  district  judge  may  grant  a  temporary  order  of  injunction 
without  notice  to  the  adverse  party  at  the  time  of  the  commence- 
ment of  the  action  which  becomes  effective  when  the  bond  required 
is  given  and  approved  by  the  clerk  of  the  court.57  In  Kansas  it  has 
been  decided  that  the  District  Court  is  not  ousted  of  its  jurisdic- 
tion to  grant  an  injunction  restraining  the  sale  by  the  county 
treasurer  of  certain  land  by  the  fact  that  proceedings  are  pending 
in  the  Supreme  Court  for  a  mandamus  to  compel  the  appraisers 
of  school  lands  to  appraise  the  same  land.58  The  civil  District 
Court  of  the  parish  of  Orleans  has  been  held  to  have  no  jurisdic- 
tion to  enjoin  the  proces3  of  the  criminal  District  Court  of  the 
same  parish,59  upon  the  general  principle  that  the  execution  of  a 
judgment  should  be  enjoined  by  no  other  court  than  that  from 
which  the  writ  is  sued.60  The  Texas  District  Court  has  been  held 
to  have  no  power  to  enjoin  the  enforcement  of  a  non-appealable 
judgment  rendered  by  a  justice  of  the  peace;61  but  when  a  void 
judgment  in  a  Texas  justice's  court  is  for  less  than  $20,  no  appeal 
or  certiorari  can  be  prosecuted  to  set  it  aside,  and  injunction  is  the 
only  remedy,  and  this  the  district  Court  has  jurisdiction  to  grant, 
though  the  supervision  of  justices'  courts  by  appeal  or  certiorari 
must  be  in  the  County  Court.62  It  is  also  decided  in  this 
State  that  where  the  District  Court  has  obtained  jurisdiction  of  a 

interested.       Under   section    337,    by  59.  Arthurs  v.  Villere,  43  La.  Ann. 

stipulation    in    writing    duly    signed  414,  9  So.  126,  holding  that  the  civil 

by  the  parties  or  their  attorney,  they  District  Court  for  the  parish  of  Or- 

may  designate  any  other  judge  than  leans  has  no  authority  to  enjoin  the 

the  ones   indicated  by  section  336  to  sheriff  of  the  criminal  District  Court 

hear  the  application.     The  above  is  a  for   the   same   parish    from   executing 

summary    of    the    provisions    of    the  a  /?.  fa.  issued  on  a  money  judgment 

Code  as  to  the   jurisdiction   in   such  rendered    by    the    latter    court    in    a 

cases.     The   granting  of   a   perpetual  criminal  prosecution  against  a  surety 

injunction  is  vested  of  course  in  the  on  a  forfeited  appearance  bond, 
judge    who    tries    the    cause    at    the  60.  State  v.  Voorhies,  40  La.  Ann. 

final  hearing."  1,  3  So.  460;  State  v.  Judge,  39  La. 

57.  State   v.    Baker,   62    Neb.    840,  Ann.    619. 

844,  88  N.  W.  124,  construing  §  251  61.  Galveston  H.  &  S.  A.  Ry.  Co. 

of  the  Civil  Code.  v.  Dowe,  70  Tex.  10.  7  S.  W.  368. 

58.  Schwab    v.    Wilson,    72    Kan.  62.  Gulf    C.    &    S.    F.    Ry.    Co.    v. 
617,  84  Pac.  123.  Rawlins,  80  Tex.  579,   16  S.  W.  430. 

133 


§  66a  Jurisdiction. 

cause  by  reason  of  an  injunction,  it  is  authorized  to  retain  cog- 
nizance of  it  for  all  the  purposes  of  the  suit.63  The  full  merits  of 
the  controversy,  as  presented  by  either  party,  will  be  adjudicated.*4 

§  66a.  Of  County  Courts. — In  some  States  power  is  conferred 
by  the  Code  upon  County  Courts  to  issue  injunctions.65  Under 
power  so  conferred  in  Nebraska  a  judge  of  the  County  Court  may 
grant  a  restraining  order  to  be  of  force  during  the  pendency  of  an 
application  for  a  temporary  injunction  which  order  is  not  operative 
after  the  date  specified  therein.66  Under  the  New  York  Code  of 
Civil  Procedure  67  the  power  of  the  county  judge  to  grant  an  in- 
junction has  been  held  to  exist  in  the  county  judge  of  the  county 
in  which  the  venue  is  laid  and  the  court  intimated  that  the  power 
would  exist  in  a  county  judge  to  act  whether  the  venue  was  laid 
in  his  county  or  not.68  And  in  New  York  the  provision  of  the  act 
authorizing  the  election  of  special  county  judges  and  surrogates 
in  certain  counties,69  providing  that  a  special  surrogate  so  elected 
"  shall  possess  all  the  powers  and  perform  all  the  duties  which  are 
possessed  and  can  be  performed  by  a  county  judge  out  of  court " 
was  not  repealed  by  the  Code  of  Civil  Procedure.  And  it  was 
therefore  held  by  the  Court  of  Appeals  that  a  special  surrogate, 
elected  for  the  county  of  Oneida,  had  power  to  grant  an  injunction 
in  a  case  where  the  county  judge  would  have  had  jurisdiction,70 

k 

63.  Ex  parte  Allison  (Tex.  Cr.  ger  &  Cotton's  Annot.  Codes  and 
1905),  90  S.  W.  492.  holding  that  the       Stats.  1902,  §  923. 

District    Court    may    grant    injunc-  66.  State   v.    iireen,   48   Neb.   327, 

tions  against  gambling  houses  under  67  N.  W.   162. 

the  provision  of  the  law   (Gen.  Laws  67.  Section     606,     providing    that 

29th  Leg.   p.   372,  C.   153)    authoriz-  "Except  where  it  is  otherwise  speci- 

ing  such  procedure  against  gambling  ally  prescribed  by  law,  an  injunction 

houses.  order   may   be   granted   by   the   court 

64.  Stein  v.  Frieberg,  64  Tex.  271,  in  which  the  action  is  brought,  or 
273.  Per  Willie,  J.  citing  Cham-  by  a  judge  thereof,  or  by  any  county 
bers  v.  Cannon,  4  Tex.  299;  Willis  v.  judge." 

Gordon,  22  Tex.  243;  Bourke  v.  Van-  68.  Morris  v.  Mayor  of  New  York, 

derlip,   22   Tex.   221 ;    Witt  v.   Kauf-  7  N.  Y.  Supp.  943. 

man,  25  Tex.  Supp.  384.  69.  Ch.    306,    Laws    of    1849,    as 

65.  Neb.   Code    Civ.    Proc.    §    252;  amended  by  ch.  108,  Laws  of  1851. 
N.  Y.  Code  Civ.  Proc.  §  606;  Ballin-  70.  Code  Civ.  Proc.  §  606. 

134' 


Jurisdiction.  §§  67,  68 

and  that  one  violating  an  order  so  granted  was  properly  adjudged 
in  contempt.71 

§  G7.  Of  Courts  of  Common  Pleas. — In  Pennsylvania,  Courts 
of  Common  Pleas  have  original  jurisdiction  of  injunctions  in  their 
respective  counties.72  The  Court  of  Common  Pleas  of  the  city  and 
county  of  Philadelphia  was  vested  by  the  special  statutes  of  1836 
and  1857  with  the  injunctive  jurisdiction  of  Courts  of  Chancery.73 
The  Court  of  Common  Pleas  in  and  for  the  city  and  county  of 
New  York  had  injunctive  jurisdiction  in  respect  to  persons  there 
resident  co-extensive  with  that  of  the  Supreme  Court.74  And  in 
Ohio  it  is  provided  by  law  that  an  injunction  may  be  granted  by 
the  Court  of  Common  Pleas  or  a  judge  thereof.70 

§  68.  Of  probate  courts ;  of  surrogates. — The  Illinois  statute 
which  gave  the  County  Courts  jurisdiction  "  in  all  matters  of  pro- 
bate settlements  of  estates  of  deceased  persons  and  in  proceedings 
by  executors,  guardians,  etc.,  for  the  sale  of  real  estate  for  the 
purposes  authorized  by  law,"  conferred  upon  those  courts  equitable 
jurisdiction  in  a  proceeding  to  distribute  a  fund  created  by  a  will 
and  authorized  a  County  Court  to  order  the  share  of  a  legatee  to  be 
paid  to  his  assignee  for  valuable  consideration.76     Under  the  pro- 

71.  Aldinger  v.  Pugh,  132  N.  Y.  "County  courts  in  this  State  are 
403,  30  N.  E.  745,  aff'g  57  Hun.  181.  superior    courts    of    general    jurisdic- 

72.  Charties  Coal  Co.  v.  Mellon,  tion  with  respect  to  all  matters  com- 
152  Pa.  St.  286,  25  Atl.  597;  Mur-  ing  within  the  purview  of  their  juris- 
dock  v.  Walker,  152  Pa.  St,  595,  25  diction  as  given  by  law.  Matthews 
Atl.  492.  v-  Hoff,  113  111.  96,  and  cases  there 

73.  Walters  v.  McElroy.  151  Pa.  cited.  But  as  to  the  subject  matter 
St.  549,  25  Atl.  125.  it  is  limited  to  what  is  given  by  posi- 

74    N.  Y.   Code  Civ.  Pro.  §§   263,  tive  law.     It  could  derive  none  as  a 

267.    See  House  v.  Clemens,  16  Daly,  court  either  from  a  will  or  from  the 

3;   Humphreys  Med.   Co.  v.  Bell,   15  decree  of  any  other  court.     Leman  v. 

Daly,  6;  Kimball  v.  Hewitt,  15  Daly,  Sherman,   117  111.  657,  6  N.  E.  872. 

124;    Rogers    v.    Hanfield,    14    Daly,  By  positive  law  it  has  jurisdiction  in 

039  all  matters  of  probate,  etc.,  etc.     And 

75.  Bates  Annot.  Stats.  1905,  §  in  the  settlement  of  estates  and  the 
cryi  adjustment  of  the  accounts  of  exec- 

76.  Shephard  v.  Clark,  38  111.  utors,  etc.,  it  has  equitable  jurisdic 
App.   66,   72,  where  the  court  said:  tion  and  may  adopt  equitable  forms 

135 


§  68  Jurisdiction. 

vision  of  the  Ohio  constitution  that  probate  courts  may,  in  addition 
to  enumerated  powers,  have  such  other  jurisdiction  as  may  be 
provided  by  law,  the  Legislature  may  authorize  probate  judges  to 
grant  injunctions  in  cases  pending  in  the  Circuit  or  Common  Pleas 
Courts  in  the  absence  from  the  county  of  judges  of  those  courts.77 
In  an  early  case  in  Mississippi  it  was  decided  that  the  probate 
court  had  no  authority  or  power  to  enjoin  the  order  of  a  Court  of 
Chancery  and  in  fact  no  power  to  grant  injunctions.78  The  New 
Mexico  Organic  Act,  which  provided  that  the  judicial  power  shall 
be  vested  in  a  Supreme  Court,  District  Court,  probate  courts  and 
justices  of  the  peace,  and  that  the  jurisdiction  of  the  several  courts 
"  shall  be  as  limited  by  law,"  did  not  confer  chancery  jurisdiction 
on  probate  courts.79  Where  a  suit  was  brought  by  the  heirs  and 
administrator  of  A.  against  his  widow,  in  the  Circuit  Court  of 
Iowa,  to  determine  her  rights  under  an  antenuptial  contract,  it  was 
held,  that  the  District  Court  had  jurisdiction,  pending  the  action,  to 
enjoin  the  heirs  and  administrator  from  interfering  with  her  right 
of  temporary  homestead  in  land  occupied  by  her  and  her  husband 
as  such  during  the  marriage;  and  such  jurisdiction  was  not 
affected  by  the  fact  that  she  asked  other  relief  to  which  she  was  not 
entitled.80  In  New  York  surrogates  have  been  to  some  extent  vested 
by  statute  with  the  injunctive  powers  of  county  judges.81    In  New 

of  procedure.  Millard  v.  Harris  119  tion  in  cases  where  equities  are  in- 
Ill.  198,  10  N.  E.  387;  In  re  Corring-  volved.  Xor  would  a  due  regard  to 
ton,  124  111.  366,  16  N.  E.  252.  public   policy   and   the   protection  of 

77.  Ohio  Rev.  St.  §  5573;  Phelon  decedents'  estates  justify  the  grant 
v.  Pittsburg,  etc.,  R.  Co..  5  Ohio  C.  of  such  extensive  powers  to  Probate 
Ct.  545.  Courts      as      constituted      in      New 

78.  American     Colonization    Soci-  Mexico." 

ety  v.   Wade,   8   Sm.   &   M.    (Miss.)  80.  Collins   v.    Collins,     72    Iowa. 

610.  104,  33  N.  W.  442. 

79.  Perea  v.  Barela,  61  N.  M.  239,  81.  Laws  1849,  ch.  306,  as 
27  Pac.  507,  where  tne  court  said:  amendea  by  Laws  1851,  ch.  108,  gave 
"  The  privision  of  the  Act  of  Con-  the  surrogates  of  certain  counties  all 
gress  that  the  Supreme  Court  and  the  powers  possessed  by  a  county 
District  Courts  respecively  of  every  judge  out  of  court.  Before  the  adop- 
Territory  shall  possess  chancery  as  tion  of  the  Code  of  Civil  Procedure, 
well  as  common  law  jurisdiction,  ex-  these  special  surrogates  had  power 
eludes  the  idea  that  the  Probate  to  grant  injunctions  in  actions  in  the 
Courts  shall  have  exclusive  jurisdic-  Supreme  Court;    and  section  606  of 


136 


Jurisdiction.  §§  68a,  68b 

York  the  statute  of  1837  confined  the  authority  of  a  surrogate's 
court  to  issue  injunctions  to  executors,  administrators  and  guar- 
dians and  to  cases  where  a  citation  for  their  removal  had  been 
issued.  The  present  Code  of  Civil  Procedure  which  seems  to 
extend  such  authority,82  provides  that  a  surrogate  may  enjoin,  by 
order,  an  executor,  administrator,  testamentary  trustee  or  guar- 
dian, to  whom  a  citation  or  other  process  has  been  issued  from  his 
court,  from  acting  as  such,  until  the  further  order  of  the  court.83 

§  68a.  Of  court  commissioners. — Under  a  statute  conferring 
power  upon  a  court  commissioner  to  grant  injunctions  subject  to 
the  exception  that  "  an  injunction  to  suspend  the  general  and 
ordinary  business  of  a  corporation  shall  not  be  granted  except 
by  the  court  or  presiding  judge  thereof,  it  has  been  decided  that 
an  injunction  to  restrain  a  holder  of  stock  in  an  incorporated  com- 
pany from  voting  upon  such  stock  at  an  election  of  directors  for 
said  company  is  not  within  the  exception;"  8*  nor  is  an  injunction 
to  restrain  a  municipality  from  executing  and  delivering  tax 
deeds,85  nor  an  injunction  to  restrain  a  town  from  laying  out  and 
constructing  an  expensive  highway,  without  having  any  funds 
in  its  treasury  or  any  legal  authority  to  incur  an  indebtedness  for 
that  purpose.8* 

§  68b.  Statutory  provisions  of  a  general  character. — In 
several  of  the  States  statutes  or  constitutional  provisions  are  in 
force  which  provide  in  general  terms  that  the  order  or  writ  may 
be  granted  by  the  court  in  which  the  action  is  brought  or  by  a  judge 
thereof  and  that  when  granted  by  a  judge  it  may  be  enforced  as 

that   Code  expressly  conferred   juris-  82.  Redtield's    Surr.   Pr.,   4th   Ed., 

diction    on    county    judges    to    grant  p.  58;  Breslin  v.  Smith,  3  Dem.  251. 

such    injunctions.      Held   that,    after  83.  >>.  Y.  Code  Civ.  Proc,  §  2481. 

the  adoption  of  said  Code    said  sur-  84.  Reed  v.  Jones,  6  Wis.  680. 

rogates  had  power  to  grant  such  in-  85.  Doty    v.    Village  of  Menasha 

junctions.     Aldinger  v.  Pugh.  1.32  N.  14   Wis.   75. 

Y.  403,  30  N.  Y.  745,  aff'g  10  N.  Y.  86.  Bay  Land  &  Imp.  Co.  v.  Town 

Supp.  684.     See,  also,  Ross  v.  Wigg,  of  Washburn,  79  Wis.  423,  48  N.  W. 

101  N.  Y.  640.  aff'g  36  Hun,  107.  492.     See  §  2780,  Wis.  Rev.  Stats. 

137 


§  69  JUKISDICTION. 

the  order  of  the  court.87  By  the  New  York  Code  it  is  provided  that 
except  when  it  is  otherwise  specially  prescribed  by  law,  an  injunc- 
tion order  may  be  granted  by  the  court  in  which  the  action  is 
brought,  or  by  a  judge  thereof,  or  by  any  county  judge;  and  where 
it  is  granted  by  a  judge,  it  may  be  enforced  as  the  order  of  the 
court.88  In  Connecticut  any  judge  of  any  court  of  equitable  juris- 
diction may,  on  motion,  grant  and  enforce  writs  of  injunction 
according  to  the  course  of  proceedings  in  equity  in  all  actions  for 
equitable  relief  where  such  relief  is  properly  demandable,  return- 
able to  any  court,  when  such  court  is  not  actually  in  session,89 
whether  in  term  time  or  vacation. 

§  69.  Conditional  and  auxiliary  jurisdiction. — In  many  States 
a  conditional  jurisdiction  is  conferred  upon  a  judge  or  a  court 
official  to  grant  an  injunction.  So  in  Virginia,  where  an  inferior 
court  having  regular  injunctive  jurisdiction  refuses  to  exercise  it, 
a  judge  of  the  Supreme  Court  may,  under  the  authority  of  the 
constitution,  grant  the  injunction,  though  such  power  could  not 
be  exercised  by  his  court  sitting  in  banc.90  Under  the  Civil  Code  of 
Arkansas  if  the  county  probate  judge  and  the  judge  of  the  circuit 
refuse  to  grant  an  injunction  the  judges  of  the  Supreme  Court 
are  authorized  to  grant  one  until  the  cause  is  heard  on  its  merits.91 
It  is  also  provided  in  this  State  that  when  the  circuit  judge  is 
absent  the  county  judge  may  issue  an  injunction.92  And  it  is  also 
provided  by  statute  in  this  State  that  in  the  absence  of  the 
chancellor  from  the  county  an  injunction  may  be  granted  by  the 
circuit  judge  after  the  action  has  been  commenced,  but  not  before.93 
In  Illinois  it  is  provided  that  when  no  judge  authorized  to  grant 

87.  Iowa  Code  1897,  §  4357;  La.  91.  Ex  parte  Hays,  26  Ark.  510. 
Const.  &  Rev.  Laws,  1904,  §  96;  Nev.  92.  Ark.  Dig.  Stats.,  1894,  §  3780. 
Comp.  Laws,  1900,  §  3206;  No.  Dak.  93.  Moody  v.  Lowrimore  (Ark. 
Rev.  Codes,  1899,  §  5343.  1905),  86   S.   W.  400.  holding  under 

88.  IN.  Y.  Code  Civ.  Proc.,  §  606.       Kirby's   Dig.,   §    1294,   that  where  a 
t>9.  Conn.     Gen.     Stats.,     1902,     §       petition  asks  for  no  other  relief  than 

1^02.  an  injunction  the    circuit  judge  has 

90.  Fredenheim    v.    Rohr,    87    Va.       no  jurisdiction  to  grant  it. 
764,  13  S.  E.  193,  266. 

138 


Jurisdiction.  §  69 

writs  of  injunction  is  present  in  the  county,  or  being  present,  is 
unable  or  incapacitated  to  act,  a  master  of  chancery  in  such  county 
may  order  the  issuing  of  such  writ.94  In  Missouri  an  injunction 
may  be  granted  by  probate  court  or  judge  thereof  or  County  Court 
or  judges  thereof,  in  vacation,  upon  satisfactory  evidence  that  there 
is  not  then  any  Circuit  Court  in  session  or  any  judge  thereof 
within  the  county.95  In  Kansas  a  probate  judge  may  grant  a 
restraining  order  to  be  of  the  same  effect  as  a  like  order  made  by 
a  judge  of  the  District  court,  in  the  absence  of  the  latter  judge 
from  the  county  or  in  case  he  is  disqualified  or  prevented  by  sick- 
ness from  acting.96  In  Ohio  the  probate  judge  of  the  county  may 
grant  injunctions  in  actions  pending  in  either  the  Court  of  Com- 
mon Pleas  or  the  Circuit  Court  of  the  county  in  the  absence  from 
the  county  of  the  respective  judges  of  such  courts.97  In  Oklahoma 
a  probate  judge  may  grant  an  injunction  in  absence  of  district 
judge  from  county.98  In  Michigan  in  case  of  absence,  sickness  or 
disqualification  of  a  circuit  judge  of  a  district  the  circuit  judge 
of  an  adjoining  district  may  under  certain  conditions  issue  an 
injunction.99  In  Virginia  and  West  Virginia  when  a  circuit  or 
corporation  court,  or  a  judge  thereof,  shall  refuse  to  award  an 
injunction,  a  copy  of  the  proceedings  in  court,  and  the  original 
papers  presented  to  the  judge  in  vacation,  with  his  order  of 
refusal,  may  be  presented  to  a  judge  of  the  Court  of  Appeals  who 
may  thereupon  award  the  injunction.1  Under  this  provision  it  is 
decided  that  no  original  jurisdiction  is  conferred  upon  one  of  the 
judges  of  this  court  to  award  an  injunction  except  in  the  case 
where  the  application  has  been  made,  first  to  a  judge  of  an  inferior 
court,  either  in  term  or  in  vacation  and  has  been  refused.2    Where 

94.  111.  Rev.  Stats.,   1903,  ch.  69,  99.  Mich.     Comp.    Laws,    1897,   § 
§   2,   p.   1041.  555. 

95.  Mo.  Rev.  Stats..  1899,  §  3628.  1.  Va.  Annot.  Code,  1904,  §  3438; 

96.  Kan.  Gen.  Stats.,  1905,  §  5134.  West  Va.  Annot.  Code,  1906,  §  4010. 

97.  Bates     Annot.     Stats.,     Ohio,  2.  Fredenheim  v.  Rohr,  87  Va.  764, 
1905.    §   5571.  769,    13    S.   E.    193,    citing  Mayo   v. 

98.  Phelon  v.  Pittsburgh,  etc.,  R.  Haines,    2    Munf.    (Va.)    423;    Ran- 
Co.,  5  Ohio  C.  Ct.   545.  dolph   v.   Randolph,    6    Rand.    (Va.) 

98.  Okla,   Rev.    &    Annot.   Stats.,       215. 
1903,   §   4426. 

139 


§§  70,  71  Jurisdiction. 

a  statute  confers  such  conditional  jurisdiction  it  can  not  be  con- 
strued as  conferring  powers  beyond  those  expressly  defined.  So 
where  a  statute  confers  power  on  the  clerk  of  a  court  to  grant  a 
preliminary  restraining  order  in  the  absence  of  the  circuit  judge 
from  the  county  it  will  not  be  construed  as  authorizing  him  to 
grant  a  mandatory  injunction.3 

§  70.  Jurisdiction  in  vacation. — Generally  by  force  of  statute 
the  judges  of  courts  having  injunctive  jurisdiction  may  grant 
injunctions  in  vacation.4  In  Iowa  the  word  "  vacation,"  within 
the  meaning  of  the  statute  of  that  State  has  been  construed  to  mean 
such  time  as  the  court  is  not  actually  in  session,  and  is  not  to  be 
restricted  to  the  time  between  terms.5  The  requirement  that  a 
judge  who  in  vacation  grants  an  injunction  must  indorse  the  order 
on  the  petition,  is  directory  merely.  The  fact  that  he  writes  the 
order  on  a  separate  piece  of  paper  does  not  vitiate  the  injunction.6 
In  Mississippi  it  is  provided  by  Code  that  an  injunction,  if  the 
chancellor  or  judge  consider  it  proper,  may  be  granted,  issued,  and 
executed  on  Sunday.7  Under  the  English  practice  an  injunction 
was  always  granted  in  open  court,  except  in  cases  of  great  emer- 
gency, shown  to  be  so  by  petition  and  affidavit,  under  which  cir- 
cumstances they  were  allowable  in  vacation,  if  the  petition  was 
accompanied  by  a  certificate  that  the  bill  was  filed.8 

§  71.  Jurisdiction  at  chambers. — The  jurisdiction  of  a  judge 
at  chambers  is  merely  incidental  to  and  cannot  go  beyond  the 
jurisdiction  of  the  court  to  which  he  belongs.     It  has  been  held 

3.  Commonwealth    v.     Combs,     27  Missouri — Rev.      Stats.,      1899,      § 
Ky.  Law  Rep.  751,  86  S.  W.  697.  3627. 

4.  Arizona. — Rev.  Stats.,  1901,  §  5.  Thompson  v.  Benepe,  67  Iowa, 
2742.  79,  24  N.  W.  601. 

Illinois.— Rev.  Stats..  1903,  ch.  69,  6.  Jordan  v.  Wapello  County  Cir- 

§  1,  p.  1041.  cuit  Court,  69  Iowa,   177,  28  N.  W. 

Indiana. — Thornton's     Annot.     Civ.  548,  construing  Iowa  Code,  §  3394. 

Code,   §  961,   1228.  7.  Miss.  Code.   1906,  §  992. 

Maine. — Rev.    Stats.,   1903,   ch.    79,  8.  Commercial  Bank  of  Rodney,  v. 

§  35,  p.  683.  State,  4  Sm.  &  M.   (Miss.)   439,  514. 


Mississippi.— Code  of   1906,   §   992. 


140 


Jurisdiction.  §  "1 

that  under  the  Ohio  constitution  which  provides  "  that  the  several 
judges  of  the  Supreme  Court  shall  respectively  have  such  juris- 
diction at  chambers  or  otherwise  as  may  be  directed  by  law," 
the  Legislature  of  that  State  cannot  confer  jurisdiction  on  a  judge 
of  the  Supreme  Court  at  chambers  to  grant  or  dissolve  an  injunc- 
tion pending  in  another  court  because  the  court  itself  has  no  such 
original  jurisdiction.9  And  under  the  Montana  constitution  a 
district  judge,  though  authorized  to  "  hold  court  for  any  other 
district  judge,"  has  not  the  incidental  power  to  grant  an  injunction 
when  so  sitting  in  another  district  than  his  own.10  In  Nebraska 
it  is  decided  that  under  the  Code  a  judge  of  the  District  Court 
sitting  at  chambers  may  grant  a  temporary  order  of  injunction 
without  notice  to  the  adverse  party  at  the  time  of  the  commence- 
ment of  the  action,  which  becomes  effective  when  the  bond  required 
is  given  and  approved  by  the  clerk  of  the  court.11  In  Oklahoma 
it  has  been  decided  that  the  district  judge  at  chambers  may,  at 
any  time  subsequent  to  filing  of  the  petition  and  issuance  of  sum- 
mons, grant  a  temporary  injunction  restraining  interference  with 
the  possession  of  successful  contestants  by  those  who  were  unsuc- 
cessful in  a  proceeding  before  the  land  department.12  In  South 
Carolina  any  justice  of  the  Supreme  Court  at  chambers  may  exer- 

9.  Pittsburgh,  etc.,  R.  Co.  v.  and  adjourns  the  trial  of  a  cause 
Hurd,  17  Ohio  St.  144,  146;  Kent  from  Saturday  until  Monday,  when 
t.  Ma'hafTy,  2  Ohio  St.  498.  he  proceeds  with  it,  he  is  not  in  the 

10.  Const.  Mont.  art.  8.  §  12,  pro-  meantime  a  judge  of  the  court  in 
vides  that  ■  the  State  shall  be  di-  that  district  within  the  meaning  of 
Tided  into  judicial  districts,  in  each  Code  Civil  Proc.  Mont.,  §  172,  which 
of  which  there  shall  be  elected  by  the  provides  that  an  injunction  may  be 
electors  thereof  one  judge  of  the  Dis-  granted  "  by  the  court  in  which  the 
trict  Court.  .  .  .  Any  judge  of  action  is  brought  or  by  the  judge 
the  District  Court  may  hold  court  for  thereof,"  and  hence  he  cannot  srrant 
any  other  district  judge,  and  shall  an  injunction  in  chambers.  Wallace 
do  so  when  required  by  law."  Held,  v.  Helena  El.  Ry.  Co..  10  Mort.  24, 
that  this  section  does  not  of  itself  24  Pac.  626,  25  Pac.  278.  See,  also, 
confer  authority  to  grant  an  injunc-  In  re  iNeagle,  39  Fed.  833,  855,  856. 
tion  in  chambers  on  a  judge  who  is  11.  State  v.  Baker,  62  Neb.  840, 
holding  court  in  a  district  other  than  845,  88  N.  W.  124.  decided  under  § 
his  own;  and  where  a  district  judge  251    of  the   Civil   Code. 

is  holding  court  for  another,   as   al-  12.  Cox  v.  Garrett,  7  Okla.  375,  54 

lowed  by  Const.  Mont.,  art.  8,  §   12,       Pac.  546. 

141 


§§  72,  73  Jurisdiction. 

cise  the  power  conferred  upon  that  court  by  the  constitution  to 
grant  an  injunction  in  an  action  which  is  not  pending  in  that 
court.13  In  Montana  it  is  provided  by  the  Code  that  a  judge  of 
the  District  Court  may  at  chambers  hear  and  determine  writs  of 
injunction.14 

§  72.  Trial  court's  jurisdiction  pending  appeal. — Pending 
appeal  by  defendant  from  a  judgment  enjoining  the  operation  of 
certain  machinery  on  certain  premises,  it  is  in  the  discretion  of 
the  trial  court  to  stay  enforcement  of  the  judgment,15  but  in  New 
York  not  in  its  power  to  continue  a  temporary  injunction  pending 
an  appeal  by  plaintiff  from  a  judgment  adverse  to  him.16  The 
Special  Term  of  the  Superior  Court  of  New  York  city  had  power, 
pending  an  appeal  from  its  judgment  enjoining  defendant  from 
doing  certain  acts,  to  suspend  the  operation  of  the  judgment  during 
the  appeal,  upon  defendant's  giving  security  for  the  damages 
which  might  result.17 

§  73.  Jurisdiction  of  the  High  Court  of  Justice. — By  virtue 
of  the  English  Judicature  Act  of  1873  the  High  Court  of  Justice 
is  vested  with  the  extensive  jurisdiction  of  granting  injunctions 
conferred  on  the  common  law  courts  by  the  Common  Law  Pro- 
cedure Act  of  1854,  sections  79  and  81;  and  can  be  exercised  by 
any  judge  of  the  High  Court  whenever  justice  will  be  done,  having 
regard  to  settled  legal  principles.18  Section  25  of  the  Judicature 
Act  did  not  alter  the  former  practice  as  to  injunctions  but  is 
intended  to  get  rid  of  certain  technical  objections.19  The  words 
"  just  and  convenient "  in  that  section  are  to  be  construed  as  if 
they  were  "  just  as  well  as  convenient;"  20  they  do  not  mean  that 

13.  Salinas  v.   Aultman,  49  S.   C.  17.  Genet  v.  Delaware  Canal  Co., 
378.  27   S.   E.  407,  construing  S.  C.  113  N.  Y.  472,  21  N.  E.  390. 
Const.  1895,  art.  5,  §§  4,  25.  18.  Beddow  v.  Beddow,  L.  R.  9  Ch. 

14.  Mont.    Code    Civ.   Proe.,  1895,  D.  89. 

§    171.  19.  Fletcher     v.     Rodgers.    27    W. 

15.  Pach  v.  Geoffroy  (Sup.),  19  Rep.  97;  Gaskin  v.  Bans,  L.  R.  13 
N.  Y.  Supp.  583.  Ch.  D.  324. 

16.  Spears  v.  Mathews,  66  N.  Y.  20.  Day  v.  Brownrigg,  L.  R.  10 
127.  Ch.  D.  294. 

142 


Jurisdiction.  §  74 

the  court  is  to  grant  an  injunction  merely  because  the  court  deems 
it  convenient  to  do  so,  but  that  the  court  should  grant  an  injunc- 
tion for  the  protection  of  rights  and  the  prevention  of  injury 
according  to  legal  principles.21  In  1880  it  was  decided  that  the 
court  had  jurisdiction  under  section  25  of  the  Judicature  Act, 
greater  perhaps  than  before,  to  restrain  by  injunction  the  publi- 
cation of  a.  libel  injurious  to  trade ;  and  that  in  order  to  obtain  the 
injunction,  plaintiff  need  not  prove  actual  damage  but  only  that 
the  libel  was  calculated  to  injure  his  trade.22  Where  damages  are 
claimed  in  substitution  for 'an  injunction  to  restrain  a  wrongful 
act  commenced  before  the  issue  of  the  writ  and  continued  after- 
wards, if  the  wrongful  act  has  come  to  an  end  before  the  trial,  the 
court  has  jurisdiction  under  section  3  of  Lord  Cairns'  Act  to  assess 
the  whole  of  the  damages  accrued.  Lord  Cairns'  Act  is  not  affected 
by  the  Judicature  Acts.21 

§  74.  Jurisdiction  of  Quebec  courts ;  of  British  Columbia 
courts. — The  courts  and  judges  of  the  Province  of  Quebec  have 
the  power  which  existed  in  France  under  the  name  of  refere,  and 
which  exists  in  England  and  United  States  under  an  injunction, 
to  restrain  parties  to  a  suit  from  doing  anything  that  might  change 
the  position  of  the  parties  from  what  it  was  at  the  beginning  of 
the  suit.24  The  Provincial  Act  of  1878  provides  that  the  Superior 
Court  in  term,  or  any  judge  thereof  in  vacation  or  during  term, 
may  grant  a  writ  of  injunction  ;25  but  under  this  act  it  seems  that 
the  Superior  Court  cannot  enjoin  a  Montreal  suitor  before  it  from 
bringing  another  equity  suit  into  Ontario.26  In  British  Columbia  an 
injunction  may  be  granted  by  an  interlocutory  order  of  the  Supreme 
Court  in  all  cases  in  which  it  shall  appear  to  the  court  to  be  just 
or  convenient  that  such  order  should  be  made,  and  any  such  order 

21.  Aslatt  v.  Southampton,  L.  R.  24.  Carter  v.  Breakey,  2  Quebec 
16  Ch.  D.   143,   148.  L.  Rep.  232;   Bourgouin  v.  Montreal, 

22.  Thomas  v.  Williams,  L.  R.  14  etc.,  R.  Co.,  19  L.  Can.  Jur.  57. 
Ch.  D.  864;  but  see  Dicks  v.  Brooks,  25.  41  Vic.  ch.   14    (Que.). 

L.  R.  15  Ch.  D.  22.  26.  Parent  v.  Shearer,  23  L.  Can. 

23.  Fritz  v.  Hobson,  L.  R.  14  Ch.       Jur.  42. 
D.  542. 

143 


§75 


Jukisdiction. 


may  bo  made  either  unconditionally  or  upon  such  terms  and  con- 
ditions as  the  court  shall  think  just.27 

§  75.  Extra-territorial  jurisdiction. — Jurisdiction  by  injunc- 
tion does  not  extend  beyond  the  State  in  which  the  injunction  was 
issued  unless  the  court  has  acquired  jurisdiction  of  the  person  of 
defendant.28  Thus  it  has  been  held  that  a  court  of  equity  in 
Georgia  cannot  enjoin  non-residents  from  doing  acts  of  a  personal 
character  beyond  that  State  as  they  could  not  be  served  with  process 
outside  of  the  State  nor  be  punished  for  violation  of  the  in- 
junction.25*  And  an  order  will  not  ordinarily  be  granted  staying 
plaintiff  from  pursuing  in  the  courts  of  another  State  land  situated 
therein,  belonging  to  defendant,  as  such  an  order  would  be  a  viola- 
tion of  the  comity  between  the  courts  of  different  States.30    And  a 


27.  Rev.  Stats,  of  Brutish  Colum- 
bia, 1897,  ch.  56,  §  14,  p.  572. 

28.  Western  U.  Tel.  Co.  v.  Pacific, 
etc.,  Tel.  Co.,  49  111.  90,  where  the 
court  said:  "  The  jurisdiction  of  our 
courts  is  only  co-extensive  with  the 
limits  of  our  State.  They  cannot  le- 
gally send  their  process  into  other 
States  and  jurisdictions  for  service. 
If  the  exercise  of  such  a  jurisdiction 
were  attempted  and  an  injunction 
granted,  and  it  should  be  disobeyed 
by  persons  in  Indiana,  this  court 
would  be  powerless  to  enforce  the  in- 
junction by  attachment,  and  hence 
the  effort  to  exercise  such  a  power 
would    be   readily    defeated. 

The  courts  of  this  State  cannot  re- 
strain citizens  of  another  State  who 
are  beyond  the  limits  of  this  State 
from  performing  acts  in  another 
State,  or  elsewhere  outside  of  and  be- 
yond the  boundary  lines  of  this  State. 
Any  other  practice  would  necessarily 
lead  to  a  conflict  of  jurisdiction." 

29.  Hazlehurst  v.  Savannah,  etc., 
R.  Co.,  43  Ga  13 ;  Adams  v.  Lamar.  8 
Ga.  82;  Dearing  v.  Charleston  Bank, 


5  Ga.  497.  The  general  rule  is  that 
a  grant  of  administration  has  no  legal 
operation  outside  of  the  State  from 
whose  jurisdiction  it  was  derived, 
and  that  no  suit  can  be  maintained 
by  or  against  an  executor  or  admin- 
istrator in  his  official  capacity  in  the 
courts  of  any  othar  State.  Fugate  v. 
Moore.  86  Va.  1045,  1047,  11  S. 
E.  1063;  Andrews  v.  Avory,  14 
Gratt.  229;  Doolittle  v.  Lewis,  7 
Johns.  Ch.  45;  Vaughan  v.  Nor- 
thup,  15  Pet.  1,  10  L.  Ed.  639; 
Harvey  v.  Richards,  1  Mason,  381. 
If,  however,  an  executor  or  admin- 
istrator goes  into  another  State  and 
collects  assets  oi  his  decedent  there 
he  may  be  sued  in  the  courts  of  that 
State  by  any  creditor  there  and  held 
liable  to  the  extent  of  the  assets  so 
collected.  Fugate  v.  Moore,  86  Va. 
1045,   1047,   11   S.   E.   1063. 

30.  Durant  v.  Pierson,  12  N.  Y. 
Supp.  145,  distinguishing  Bowers  v. 
Durant,  43  Hun,  348.  See  Genet  v. 
Delaware  Canal  Co.,  29  N.  Y.  St. 
Rep.  954. 


144 


Jurisdiction.  §  75a 

judge  cannot  while  in  another  State  issue  an  injunction  which  will 
be  valid  within  his  own  State  or  elsewhere.31  The  fear  entertained 
by  a  chancellor  of  New  York  that  to  enjoin  proceedings  in  another 
State  might  lead  to  retaliation  and  so  give  rise  to  serious  conflicts 
of  jurisdiction,32  has  not,  however,  largely  prevailed  nor  prevented 
the  granting  of  such  injunctions.33  The  inconvenience  of  ascertain- 
ing facts  and  of  going  to  another  State  to  defend  the  action  there,  is 
not  sufficient  ground  to  enjoin  the  prosecution  of  an  action  there.3* 

§  75a.  Same  subject;  jurisdiction  dependent  on  location  of 
subject  matter. — The  jurisdiction  of  the  court  to  grant  an  injunc- 
tion may  be  dependent  upon  the  location  of  the  subject  matter  in 
respect  to  which  the  injunction  is  sought.  So  it  has  been  decided 
that  a  suit  to  restrain  defendant  from  removing  earth  is  an  action 
for  "  injury  to  real  property  "  within  the  meaning  of  a  statute 
requiring  such  actions  to  be  brought  in  the  county  in  which  the 
subject  of  the  action  or  some  part  thereof  is  situated.  In  such  a 
case  a  court  of  another  county  has  no  jurisdiction  to  issue  an  in- 
junction.35 And  in  New  York  it  is  decided  that  an  action  brought 
to  restrain  the  erection  of  a  bridge  over  a  public  highway  to  con- 
nect buildings  of  the  defendant  standing  on  opposite  sides  of  such 
highway,  on  the  ground  that  such  erection  will  injure  property  of 
the  plaintiff  by  cutting  off  the  view  and  light  and  air  therefrom 
is  local  and  not  transitory  and  must  be  tried  in  the  county  where 
the  real  property  is  situated.36  But  where  the  relief  required  does 
not  require  the  court  to  deal  directly  with  the  property  itself,  the 
proceeding  does  not  affect  real  estate,  within  the  meaning  of  the 
Chancery  act,  and  the  court  having  the  parties  in  interest  all  before 
it,  may  proceed,  although  the  land  to  which  the  controversy  relates 

31.  Price  v.  Bayless,  131  Ind.  437,  U.  S.  107,  121,  10  S.  Ct.  269,  33  L. 
31  N.  E.  88.  *.d.  538. 

32.  Mead  v.  Merritt.  2  Paige,  402,  34.  Donnelly  v.  Morris,  59  N.  Y. 
404.  Super.  557. 

33.  Vail  v.  Knapp.  49  Barb.  299.  35.  Cox   v.   Railway  Co.,   55   Ark. 
305;    Dinsmore    v.    Neresheimer,    32  454,  18  S.  W.  630. 

Hun,  204;  Erie  R.  Co.  v.  Ramsey,  45  36.  Leland  v.  Hathorn,  42  N.  Y. 

N.  Y.  637;  Cole  v.  Cunningham,  133      547,  decided  under  Code   Civ.   Proc., 

§  123. 

145 

10 


§  76  Jurisdiction. 

may  lie  without  the  jurisdiction  of  the  court.37  And  in  this  con- 
nection it  has  been  decided  that  in  case  of  a  pure  bill  of  injunction 
to  restrain  a  sale  of  real  estate  in  one  county,  if  the  plaintiff  insti- 
tutes his  suit  in  another  county,  where  the  defendants  answer 
and  do  not  object  to  the  jurisdiction,  the  plaintiff  cannot  after- 
wards make  the  objection,  and  the  court  may  under  its  general 
jurisdiction,  hear  and  determine  the  case.38  Again,  it  has  been 
decided  that  a  bill  in  equity  to  enjoin  a  trespass  upon  realty  by 
felling  timber,  is  not  such  a  suit  respecting  the  title  to  land  as 
must  be  brought  in  the  county  where  the  land  lies,  but  the  proper 
venue  in  such  a  case  is  the  county  of  the  residence  of  the  defendant 
against  whom  substantial  relief  is  prayed.39 

§  76.  Same  subject;  receivers. — A  court  of  equity  which  has 
appointed  a  receiver  of  lands  situated  in  another  State  or  jurisdic- 
tion has  no  power  to  enjoin  a  citizen  of  that  jurisdiction  from  levy- 
ing an  attachment  on  such  lands,  unless  he  is  a  party  either  in 
person  or  by  representation  to  the  litigation  in  which  the  receiver 
was  appointed;  but  where  a  party  who  has  joined  in  the  receiver- 
ship litigation  and  has  been  active  in  extending  the  receivership 
to  the  lands  in  question  causes  suit  to  collect  a  debt  to  be  brought 
in  the  jurisdiction  where  the  lands  are  situated  and  thereby  ob- 
tains a  lien  on  the  lands,  the  court  has  authority  to  enjoin  him 
from  enforcing  the  lien  or  in  any  way  interfering  with  the  re- 
ceiver's disposition  of  the  property.39a 

37.  Hayes  v.  O'Brien.  149  111.  403,  State  or  sovereignty  from  causing  a 
410,  37  N.  E.  73,  18  L.  R.  A.  750.  levy  to  be  made  on  lands  which  are 
Per  Shope,  J.  See  Chicago,  R.  I.  &  situated  in  the  foreign  State,  and 
P.  R.  Co.  v.  Wynkoop  (Kan.  1906),  beyond  its  territorial  jurisdiction. 
85  Pac.  595.  because  it  has  appointed  a  receiver  of 

38.  Muller  v.  Bayly,  21  Gratt.  such  property,  unless  the  person  so 
(Va.)    521.  enjoined  is  a  party,  either  in  person 

39.  Powell  v.  Cheshire,  70  Ga.  357,  or  by  representation,  to  the  litigation 
48  Am.  Rep.  572.  in  which  the  receiver  was  appointed. 

39a.  Schindelholz  v.  Cullum,  55  Courts  of  chancery,  doubtless,  have 
Fed.  885,  per  Thayer,  J. :  "  For  pres-  power  to  compel  persons  subject  to 
ent  purposes  it  will  suffice  to  say  their  jurisdiction  to  execute  convey- 
that  in  our  opinion  a  court  has  no  ances  of  property  located  in  a  foreign 
power  to  enjoin  a  citizen  of  a  foreign  State     which    will    generally    be    re- 


146 


Jurisdiction. 


77 


§77.  Same  subject;  exceptions. — Though  the  courts  of  one 
State  or  country  have  no  authority  to  control  proceedings  in  the 
courts  of  another,  they  can  control  all  persons  and  things  within 


spected  by  the  courts  of  the  latter 
sovereignty  if  they  are  executed  in 
conformity  with  their  laws.  Phelps  v. 
McDonald,  92  U.  S.  298-308,  25  L.  Ed. 
473 ;  Miller  v.  Sherry,  2  Wall.  237-249, 
17  L.  Ed.  827;  Watkins  v.  Holman,  16 
Pet.  25-57,  10  L.  Ed.  873;  Mitch- 
ell v.  Bunch,  2  Paige,  60G-G15.  By 
means  of  such  orders,  and  convey- 
ances made  thereunder,  a  court  may 
be  able  to  vest  us  receiver  with  the 
title  to  realty  situated  in  a  foreign 
jurisdicion,  which  will  be  there  recog- 
nized as  valid.  But  an  order  ap- 
pointing a  receiver  of  realty  has  no 
extra-territorial  operation,  and  can- 
not affect  the  title  to  real  property 
wdiich  is  located  beyond  the  jurisdic- 
tion of  the  court  by  which  the  order 
was  made.  Booth  v.  Clark,  17  How. 
322-328,  15  L.  Ed.  164.  Such  orders, 
therefore,  only  operate  in  personam, 
and  upon  those  persons  who  are  so  re- 
lated to  the  court,  either  as  parties  to 
the  litigation,  or  by  virtue  of  residence 
and  citizenship,  that  they  are  bound 
to  yield  obedience  to  its  orders.  In  con- 
formity with  these  views  we  are  led 
to  conclude  that  John  K.  Woodburn 
acquired  a  valid  lien  on  the  property 
of  the  land  company  in  the  territory 
of  New  Mexico,  which  the  Circuit 
Court  for  the  district  of  Colorado 
was  without  power  to  divest.  He  was 
in  nowise  concerned,  as  a  party  or 
otherwise,  in  the  Colorado  suit 
wherein  the  receiver  was  appointed. 
It  is  a  doctrine  which  has  recently 
been  approved  by  the  Supreme  Court 
of  the  United  States  that  the  courts 
of  one  State  or  sovereignty  have  au- 
thority over  their  own  citizens  to  re- 


strain them  from  prosecuting  suits 
by  attachment  in  a  foreign  jurisdic- 
tion against  other  citizens  of  the 
home  State  or  sovereignty,  w?hen  the 
maintenance  of  such  suit  in  the  for- 
eign jurisdiction  is  contrary  to  equity 
and  good  conscience,  and  tends  to 
defeat  the  policy  of  local  insolvent 
laws.  The  authority  in  question  is 
said  to  be  a  part  of  the  inherent 
power  of  a  court  of  chancery  over 
persons  subject  to  its  jurisdiction. 
But  to  warrant  its  exercise  the  com- 
plaint must  show  a  clear  equity.  The 
courts  of  one  State  or  sovereignty 
will  not  restrain  a  citizen  of  that 
State  from  suing  another  citizen  by 
attachment  in  a  foreign  jurisdiction 
unless  such  proceeding  clearly  con- 
travenes the  policy  of  some  local  law 
or  statute  to  which  both  parties  owe 
obedience  by  reason  of  their  common 
citizenship.  Cole  v.  Cunningham,  133 
U.  S.  107,  10  S.  Ct.  2G9,  33  L.  Ed. 
538;  Dehon  v.  Foster,  4  Allen,  545; 
Warner  v.  Jaffray,  96  N.  Y.  248; 
Jenks  v.  Ludden,  34  Minn.  482-487, 
27  N.  W.  188;  Barnett  v.  Kinney, 
147  U.  S.  4/6,  13  Sup.  Ct. 
403,  37  L.  Ed.  247.  In  another  class 
of  ca?-s  which  are  chiefly  relied  upon 
to  sustain  the  decree  of  the  Circuit 
Court,  it  is  held  that  courts  which 
have  appointed  receivers  over  prop- 
erly situated  in  a  foreign  jurisdic- 
tion may  either  restrain  or  punish 
persons  who  interfere  with  the  re- 
ceiver's possession  of  such  property, 
even  though  the  interference  consists 
in  attaching  it  under  process  ob- 
tained from  some  court  in  the  for- 
eign  State.      Vermont   &   C.   R.    Co. 


147 


§77 


Jurisdiction. 


their  own  territorial  limits,  and  if  both  parties  to  a  suit  in  a  foreign 
country  reside  within  the  territory  of  another,  courts  of  equity  in 
the  latter  may  act  in  personam  upon  them  and  enjoin  them  from 
proceeding  further  in  the  suit.40  Where  the  necessary  parties  are 
before  a  court  of  equity  it  is  immaterial  that  the  subject  of  the 
controversy,  whether  it  be  real  or  personal  property,  is  beyond 
the  territorial  jurisdiction  of  the  tribunal.  It  can  compel  tho 
defendant  to  do,  according  to  the  lex  loci  rei  sitae,  all  that  he  could 
do  voluntarily  to  give  full  effect  to  the  decree  against  him.  With- 
out regard  to  the  situation  of  the  subject-matter,  the  court  con- 
siders the  equities  between  the  parties,  and  will  decree  in  personam 
according  to  those  equities  and  enforce  obedience  to  such  decree 
by  process  in  personam.*1  So  in  a  case  in  Pennsylvania  it  is 
decided  that  where  the  subject  matter  is  situated  within  another 


v.  Vermont  Cent.  R.  Co..  46  Vt.  792; 
Chafee  v.  Quidnick  Co.,  13  R.  I.  442; 
Sercomb   v.    Catlin,    128   111.   550,   21 
N.  E.  606;   Langford  v.  Langford,  5 
Law.  J.   Ch.    (N.  S.)    60.     In  all  of 
these   cases   last   cited,   however,   the 
person    proceeded    against    for    inter- 
fering with  the  receiver's  constructive 
possession   of    property   located   in   a 
foreign    jurisdiction     was     either    a 
party  to  the  litigation  in  which  the 
receiver    had    been   appointed,   or    in 
privity  with  a  party,  or  was  other- 
wise   subject   to    the    jurisdiction    of 
the  court  by  virtue  of  his  residence 
or  citizenship.     It  is  also  worthy  of 
notice  that  the  property  involved  was 
personalty,     and     that     the     owner 
thereof   was   domiciled   in   the   State 
where   the    receivership  was   created. 
In  considering  the  question  of  a  re- 
ceiver's title   to   property   located   in 
a    foreign    jurisdiction    a    distinction 
has    sometimes    been    taken    between 
personalty    and    realty,    but,    as    the 
case  at  bar  simply  involves  the  right 
to  attach  realty,  situated   in   a  for- 
eign State,  we  need  not  stop  to  in- 


quire whether  the  distinction  is  well 
founded,  or  whether  the  power  of  a 
court  to  restrain  persons  from  inter- 
meddling with  a  receiver's  possession 
of  personal  property  thus  situated  is 
in  any  respect,  or  for  any  reason, 
more  extensive  than  its  power  to  re- 
strain a  like  interference  with  real 
property." 

40.  Story,  Eq.  Jur.  §§  899,  900,  as 
adopted  by  the  court  in  Cole  v.  Cun- 
ningham, 133  U.  S.  107,  119,  10  S. 
Ct.  269,  33  L.  Ed.  538. 

41.  United  States. — Phelps  v.  Mc- 
Donald, 99  U.  S.  298,  308,  25  L.  Ed. 
473.     Per  Mr.  Justice  Swayne. 

Illinois. — Alexander  v.  Tblleston 
Club,    110  111.   65. 

Missouri. — State  v.  Zachritz,  166 
Mo.  307,  65  S.  W.  999,  89  Am.  St. 
Rep.  711. 

New  Hampshire. — Great  Falls  Mfg. 
Co.  v.  Worster,  23  N.  H.  462. 

Pennsylvania. — Schmaltz  v.  York 
Mfg.  Co.,  204  Pa.  St.  1,  52  Atl.  522; 
Clad  v.  Paist,  181  Pa.  St.  148,  37 
Atl.  194;  Jennings  Bros.  v.  Beale, 
158  Pa.  St.  283,  27  Atl.  948. 


148 


JUKISDICTION. 


§77 


State  or  county,  but  the  parties  are  within  the  jurisdiction  of  the 
court,  a  suit  may  be  maintained  and  a  remedy  granted  which 
directly  affect  and  operate  upon  the  person  of  the  defendant  and 
not  upon  the  subject  matter,  although  the  subject  matter  is  referred 
to  in  the  decree,  and  the  defendant  is  ordered  to  do  or  to  refrain 
from  doing  certain  acts  towards  it.  It  was  declared  that  while  the 
situs  of  property  in  dispute  is  in  another  State  a  decree  of  a  court 
of  this  State  cannot  operate  upon  or  directly  affect  it,  yet  a  court 
of  equity  in  this  State,  having  jurisdiction  of  all  the  parties  can 
determine  their  rights  to  the  property  and  by  proper  process 
enforce  them  in  personam.43  And  a  defendant  properly  sued  may 
be  enjoined  from  committing  waste  upon,  or  otherwise  impairing 
the  value  of,  property  in  which  the  complainant  is  interested,  even 
though  the  property  is  located  abroad,  provided  a  case  for  the  inter- 
position of  a  court  of  equity  is  made  out.44  A  court  of  one  State 
may  also  enjoin  attachment  proceedings  in  another  State  by  a 


In  Pennyroyal  v.  NefT,  95  U.  S. 
714,  723,  24  L.  £d.  5G5,  Field,  J.,  said: 
"The  State,  through  its  tribunals,  may 
compel  persons  domiciled  within  its 
limits  to  execute  in  pursuance  of 
therir  contracts  respecting  property 
elsewhere  situated,  instruments  in 
such  form  and  with  such  solemnities 
as  to  transfer  the  title,  so  far  as 
such  formalities  can  be  complied 
with;  and  the  exercise  of  this  juris- 
diction in  no  manner  interferes  with 
the  supreme  control  over  trie  prop- 
erty by  the  State  within  which  it  is 
situated.  Penn  v.  Lord  Baltimore,  1 
Ves.  Sen.  444;  Massie  v.  Watts,  6 
Cranch,  148;  Watkins  v.  Holman.  1C 
Pet.  25,  10  L.  Ed.  873;  Corbett  v. 
Nutt.  10  Wall.  404,  19  L.  Ed.  970. 

"  The  jurisdiction  of  equity  by 
way  of  injunction  is  strictly  in 
personam. — It  is  well  settled  that 
courts  of  equity  may  decree  the 
specific  performance  of  contracts  re- 
specting   land    situated    beyond    the 


jurisdiction  of  the  State  where  the 
suit  is  brought.  The  ground  of  this 
jurisdiction,  as  said  by  Story,  is, 
that  courts  of  equity  have  authority 
to  act  upon  the  person;  and  although 
they  cannot  bind  the  land  itself  by 
their  decree,  yet  they  can  bind  the 
conscience  of  the  party  in  regard  to 
the  land  and  compel  him  to  per- 
form his  agreement  according  to 
conscience  and  good  faith."  Alexan- 
der v.  Tolleston  Club,  110  111.  65,  77. 
Per  Sheldon,  J.,  citing  2  Story  Eq. 
Jurs.   §   743. 

43.  Schmaltz  v.  York  Mfg.  Co., 
204  Pa.  St.  1,  52  Atl.  542,  93  Am. 
St.  Rep.  782,  59  L.  R.  A.  907.  See 
Allen  v.  Buchanan,  97  Ala.  399,  11 
So.  777,  38  Am.  St.  Rep.  187;  Car- 
roll v.  Lee,  3  G.  &  J.  (Md.)  504; 
Kendall  v.  McClure  Coke  Co.,  182 
Pa.   St.    1,   37  Atl.   823. 

44.  Marshall  v.  Turnhull,  32  Fed. 
124. 


149 


3  77 


Jurisdiction. 


creditor  against  an  insolvent  debtor  both  of  whom  are  citizens  of 
the  former  State,  if  there  is  nothing  in  the  law  or  policy  of  the 
State  where  the  attachment  is  made  opposed  to  those  of  the  other.45 
The  rule  just  declared  has  been  often  applied  by  the  courts  of  tho 
domicile  against  the  attempts  of  its  citizens  to  defeat  the  operation 
of  its  laws  to  the  injury  of  others,  by  doing  acts  abroad  which 
would  be  illegal  at  home.46     A  court  vested  with  general  equity 


45.  Cole  v.  Cunningham,  133  U. 
S.  107,  10  S.  Ct.  269,  33  L.  Ed.  538, 
where  it  was  held  that  such  an  in- 
junction was  not  a  violation  of  the 
federal  Constitution  requiring  that 
full  faith  and  credit  shall  be  given 
in  each  State  to  the  judicial  pro- 
ceedings of  every  other  State.  Art. 
4,  §§  1,  2.  See,  also,  Story,  Eq.  Jur., 
§§  899,  900;  Wilson  v.  Joseph.  107 
Ind.  490,  8  N.  E.  GIG;  Vail  v.  Knapp, 

*l  49  Barb.  299,  305;  Dobson  v.  Pearce, 
12  N.  Y.  156;  Dinsmore  v.  Neres- 
heimer.  32  Hun,  204. 

46.  Thus  it  was  held  by  the  Su- 
preme Court  of  Ohio  in  Snook  v. 
Snetzer,  25  Ohio  St.  516,  that  where 
the  statutes  of  that  State  exempted 
the  earnings  for  personal  service  of 
a  debtor,  who  was  the  head  of  a 
family  and  a  citizen  of  the  State, 
the  Ohio  courts  had  authority  to  re- 
strain a  citizen  of  the  county  in 
which  the  equity  action  was  com- 
menced from  proceeding  in  another 
State  to  attach  the  earnings  of  such 
head  of  a  family,  with  a  view  to 
evade  the  exemption  laws  of  Ohio, 
and  to  prevent  him  from  availing 
himself  of  the  benefit  of  such  law. 
To  the  same  effect  is  Keyser  v.  Rice, 
47  Md.  203.  The  Court  of  Appeals 
of  Maryland  declared  the  power  of 
the  State  to  compel  its  own  citizens 
to  respect  its  laws,  even  beyond  its 
own  territorial  limits,  to  be  supported 
by  the  great  preponderance  of  prece- 


dent and  authority;  and  sustained  an 
injunction  in  another  State  of  an  at- 
tachment, by  which  the  defendant 
sought  to  recover  wages  due  the  com- 
plainant in  Maryland  and  there  ex- 
empt from  attachment.  So  in  Bur- 
lington &  Missouri  Railroad  v. 
Thompson,  31  Kan.  180,  though  it 
was  held  that  a  foreign  corporation 
doing  business  in  Kansas  might  be 
garnisheed  for  a  debt  due  to  a  non- 
resident employe,  contracted  outside 
of  the  State,  and  exempt  from  gar- 
nishment in  the  State  where  the  de- 
fendant and  garnishee  resided,  yet  it 
was  conceded  by  Judge  Brewer,  in 
delivering  the  opinion,  "  that  in  the 
courts  of  a  State  any  citizen  of 
that  State  may  be  enjoined  from  re- 
sorting to  the  courts  of  any  other 
State  for  the  purpose  of  evading  the 
exemption  laws  of  his  own  State;" 
and  this  was  so  decided  in  Zimmer- 
man v.  Franke,  34  Kan.  650.  In 
Wilson  v.  Joseph,  107  Ind.  490,  8  N. 
E.  616,  the  Supreme  Court  of  Indi- 
ana ruled  that  an  injunction  would 
lie  to  restrain  a  resident  of  Indiana 
from  prosecuting  an  attachment  pro- 
ceeding against  anolher  resident  in 
the  courts  of  another  State,  in  viola- 
tion of  a  statute  which  made  it  an 
offense  to  send  a  claim  against  a 
debtor  out  of  the  State  for  collec- 
tion, in  order  to  evade  the  exemption 
law.  And  see  Chaffee  v.  Quidnick 
Company,    13  R.   I.   442,   449;    Great 


150 


Jurisdiction.  §  77a 

powers  having  jurisdiction  of  the  person  of  a  defendant  can  decree 
a  conveyance  by  him  of  land  in  another  State  and  enforce  the 
decree  by  process  against  him  in  case  of  disobedience.47  And  where 
the  owners  of  land  in  a  suit  against  them,  by  parties  claiming  to 
hold  a  lease  of  the  land,  to  enjoin  them  from  removing  gravel 
therefrom,  execute  a  bond  conditioned  to  pay  such  damages  as  may 
result  from  its  removal,  the  court  of  another  State  into  which  the 
gravel  is  shipped  by  the  owner  of  the  land,  will  enjoin  such  parties 
from  maintaining  an  action  to  recover  the  gravel  so  shipped  while 
'.the  bond  continues  in  force.48 

§  77a.  Same  subject ;  exceptions  continued. — A  citizen  or  resi- 
dent of  a  State  who  commences  an  action  at  law  in  another  State 
becomes  amenable  to  the  equity  jurisdiction  of  the  courts  of  the 
latter  State  to  grant  an  injunction  against  proceeding  in  the  action 
at  law.49  So  in  a  case  in  Maine  it  is  decided  that  the  court  sitting 
as  a  court  of  equity,  may,  upon  a  proper  bill  duly  served,  enjoin 
the  respondent  from  further  prosecuting,  in  the  court,  a  writ  of 
entry  in  favor  of  the  respondent  against  the  claimant,  notwith- 
standing that  the  respondent  may  not  have  resided,  or  personally 
been  within  the  State,  since  the  commencement  of  the  bill.50  And 
in  such  a  case  it  is  decided  that  service  of  subpoena  on  his  attorney 

Falls  Manufacturing  Co.  v.  Worster,  within   reach   of  our  process,  no  de- 

23  N.  H.    (3  Foster)    462;   Pickett  v.  cree  in  equity  can  pass  against  him. 

Ferguson,  45  Ark.  177.  To  compel   him,  where   he   is,  to  do 

47.  Seixas  v.  King,  39  La.  Ann.  what  equity  requires — perhaps  not — 
510;  Muller  v.  Dows,  94  U.  S.  444,24  but  to  prevent  him  from  doing  within 
L.  Ed.  207;  McElrath  v.  Pittsburg,  our  own  jurisdiction  what  equity  for- 
etc,  R.  Co.,  55  Pa.  St.  189;  Alexan-  bids,  assuredly  there  is  power.  To 
der  v.  Tolleston  Club,  110  111.  G5.  See,  hold  otherwise  would  be  as  disgrace- 
also,  Prager  v.  Micas,  3G  La.  Ann.  75.  ful  as  it  is  absurd  on  its  face.     He 

48.  Cement  Gravel  Co.  v.  Wylly,  who  brings  suit  in  the  courts  of  a 
105  Ga.  204.  31  S.  E.  161.  State  must  be  considered  as  submit- 

49.  Chalmers  v.  Hack,  19  Me.  124.  ting   all   that   pertains   to   the   main- 

50.  Marco  v.  Low,  55  Me.  549.  tenance  of  that  suit  to  the  jurisdic- 
The  court  said:  "It  is  strenuously  tion  of  those  courts  which  have  cog- 
urged  in  support  of  the  demurrer  nizance  of  the  matter  in  controversy 
that,  although  Low's  real  estate  is  where  the  remedy  is  sought."  Per 
attached,  yet,  since  his  person  is  not  Barrows,  J. 

151 


§§  78,  79 


Jurisdiction. 


in  the  suit  at  law  would  be  a  good  substituted  service  to  subject 
him  to  the  jurisdiction  of  the  court.51 

§  78.  Same  subject  illustrated  in  Alabama. — It  has  been  de- 
cided by  the  Supreme  Court  of  Alabama  in  a  case  in  which  both 
parties  were  citizens  of  Alabama,  that  a  court  of  equity  of  that 
State  had  power  by  judgment  in  personam  to  restrain  defendant 
from  further  prosecuting  an  action  by  attachment  and  garnish- 
ment in  a  Louisiana  court,  to  reach  money  due  plaintiff  in  that 
State,  which,  under  the  laws  of  Alabama  is  exempt  from  legal 
process,  but  which  is  not  exempt  in  Louisiana.52  The  foregoing 
doctrine,  though  upheld  by  the  highest  authority,  has  been  criti- 
cised by  some  as  an  undesirable  inheritance  from  the  English  Court 
of  Chancery  and  as  incompatible  with  our  free  institutions.53 

§  79.  Same  subject ;  interstate  comity. — It  has  been  decided  by 


51.  Chalmers  v.  Hack,  19  Me.  124. 

52.  Allen  v.  Buchanan,  97  Ala.  399, 
11  So.  777,  38  Am.  St.  Rep.  187.  The 
following  is  from  the  opinion:  "And 
so  long  as  the  relief  sought  may  be 
worked  out  directly  on  the  person  of 
the  defendant,  and  indirectly  through 
his  person  on  property  in  a  foreign 
jurisdiction,  it  is  immaterial  what 
form  the  decree  assumes — whether  it 
is  affirmative  or  negative  in  its  effect, 
whether  it  commands  an  act  to  be 
done,  as,  for  instance,  the  execution 
of  a  conveyance,  or  restrains  the  do- 
ing of  an  act,  as.  for  instance,  the 
alienation  of  property,  the  institution 
or  prosecution  of  suits  in  other 
States,  and  the  like.  Thus  it  is  said 
by  Judge  Story,  after  declaring  that 
nothing  can  be  clearer  than  the  propo- 
sition that  the  courts  of  one  country 
cannot  exercise  any  control  of  those 
of  another :  '  But,  although  the 
courts  of  one  country  have  no  author- 
ity to  stay  proceedings  in  the  courts 


of  another,  they  have  an  undoubted 
authority  to  control  all  persons  and 
things  within  their  territorial  limits. 
When,  therefore,  both  parties  to  a 
suit  in  a  foreign  country,  are  resi- 
dent within  the  territorial  limits  of 
another  country,  the  courts  of  equity 
in  the  latter  may  act  in  personam 
upon  these  parties,  and  direct  them, 
by  injunction,  to  proceed  no  further 
in  such  suit.  In  such  case  these 
courts  act  upon  acknowledged  prin- 
ciples of  public  law  in  regard  to 
jurisdiction.  They  do  not  pretend  to 
direct  or  control  the  foreign  court, 
but,  without  regard  to  the  situation 
of  the  subject  matter  of  the  dispute, 
they  consider  the  equities  between 
the  parties,  and  decree  in  personam 
according  to  those  equities,  and  en- 
force obedience  to  their  decrees  by 
process  in  personam.'  2  Story,  Eq. 
Jur.,    §   899." 

53.  in  commenting  upon  such  Ala- 
bama decision,  the  learned  editor  of 


152 


Jurisdiction. 


§79 


the  Supreme  Court  of  Wisconsin,  that  where,  in  voluntary  pro- 
ceedings for  the  dissolution  of  a  corporation  of  another  State,  a 
receiver  is  appointed  by  a  court  of  that  State,  and  the  creditors 
are  enjoined  by  the  same  court  from  prosecuting  actions  against 


the  American  Law  Review,  for  May- 
June,    1893    (27    Am.   Law   R.    4U9), 
used  this  language :      "  It  should  be 
added  that,  while  the  Supreme  Court 
of  the  United  States  have  recognized 
this  doctrine  as  not  infringing  upon 
the    Federal    Constitution     (Cole    v. 
Cunningham,    133    U.    S.    107,    10    S. 
Ct.     269,     33     L.     Ed.     538),     there 
is  a  good  deal  of  American  authority 
against  the  propriety  of  the  exercise 
of  such   a   power.     It   is   a  doctrine 
which    we    have    inherited    from    the 
English    Court    of    Chancery,   whose 
practices  were  in  many  cases  grossly 
tyrannical.     That  court  did  not  hesi- 
tate,   by  exerting   its  power    in   per- 
sonam against  any  persons  whom  it 
could  catch  within  its  jurisdiction,  to 
decide  controversies  depending  in  any 
part  of  the  world,  even  in  regard  to 
land  titles,  which  are  strictly  of  local 
cognizance.     It   is   believed    that   the 
exercise  of  the  power  ought  to  have 
been    rejected     by     American    courts 
from  the   first,   as  incompatible   with 
the    principles    of    our    free    institu- 
tions.     The    fact    that    so    many    of 
them  have  laid  hold  of  it  and  upheld 
it  and  exercised  it,  is  a  striking  illus- 
tration of  what  may  justly  be  called 
selfishness    of     courts,     proving    that 
judges   are   just   as   greedy  of   juris- 
diction  as   men   are   of   gain,   and   in 
obedience  of  the  same  law  of  human 
nature."     And  the  editor  of  the  New 
York    Law    Journal    in    its    issue    of 
June  9,  1893,  thus  endorses  the  above 
comments  of  the  Review:     "We  con- 
cur in  the  spirit  of  these  remarks  to 
the  extent  of  believing  that  the  power 


to  issue  injunctions  against  actions 
in  sister  States  should  be  sparingly 
exercised,    and    only     when    the    pe- 
culiar necessity  therefor  is  very  ob- 
vious.     In   Kittle  v.   Kittle,   8   Daly, 
72,  the  rule  is  stated  that  our  courts, 
from    motives   of  comity   and    public 
policy,    will    not   restrain    parties    by 
injunction  from  proceeding  in  actions 
commenced  by  them  in  other  States, 
except  in  very  special  cases,   to  pre- 
vent   injustice     and    oppression.      In 
that   case    it   appeared    that  the    de- 
fendant in  an  action  for  limited  di- 
vorce in  this  Sate  had  commenced  an 
action  for  a  separation  in  the  State 
of    Connecticut,    and    the    injunction 
granted    against    the    prosecution    of 
such    latter    action    appears    to    have 
been  prompted  by  a  wise  exercise  of 
discretion.     The  decision  in  Dinsmore 
v.  Neresheimer,   32  Hun,   204.   seems 
to  go  furtner  in   contending  for  the 
general    exercise     of     the     power    in 
question.        The    defendant,    a    resi- 
dent of  the  State  of  New  York,  com- 
menced   two    actions    against    an    ex- 
press company  in  the  Supreme  Court 
of   the   District   oi   Columbia,   to   re- 
cover the  value  of  two  packages,  one 
of  which  was  to  have  been  delivered 
in    Philadelphia,    and    the    other    in 
Chicago.      By   the    terms   of   the    re- 
ceipts,  the   liabiliay  of   the   company 
upon  the  first  package  was  fixed  at 
$50      (no     specific     valuation     being 
placed   upon  it  by  the   sender),  and 
the    liability   upon    the   second    pack- 
age  was    fixed    at  $200.    a   valuation 
having  been  given  at  that  amount.  In 
the  actions    brought   in   the   District 


153 


§79 


Jurisdiction. 


the  corporation,  the  Wisconsin  courts  will  not  aid  a  creditor  so 
enjoined  who  violates  the  injunction  by  bringing  an  action  against 
the  corporation  in  Wisconsin,  and  garnishing  a  debtor  of  the 
corporation  there  resident,  but  will,  on  the  contrary,  in  the  exercise 
of  interstate  comity,  pay  due  regard  to  the  foreign  injunction,  so 
far  as  it  does  not  conflict  with  the  rights  of  the  citizens  of  Wis- 
consin, and  will  recognize  the  superior  right  of  the  receiver  to 
recover  what  is  due  from  the  Wisconsin  resident  to  the  corpora- 
tion.54 


of  Columbia,  larger  Bums  than  those 
above  named  were  claimed,  the  pack- 
ages alleged  to  have  been  respectively 
worth  $2,000  and  $3  095.91.  The 
suits  were  brought  in  the  District  of 
Columbia  in  order  to  avoid  a  decis- 
ion of  the  New  York  Court  of  Ap- 
peals sustaining  the  validity  of  pro- 
visions in  receipts  limiting  the  com- 
pany's liability,  and  to  take  advant- 
age of  a  decision  to  the  contrary 
made  by  the  Supreme  Court  of  the 
District  of  Columbia.  It  was  held 
that  the  company  could  maintain  an 
action  in  this  State  to  restrain 
the  defendant  from  prosecuting  said 
actions  in  the  District  of  Columbia. 
It  was  probably  not  an  inequitable 
use  of  legal  process  to  prevent  the 
shipper  from  recovering  anything 
more  than  the  limited  or  declared 
value  of  the  packages.  But  we  can 
see  how  this  case  might  be  used 
quite  plausibly,  as  a  general  prece- 
dent and  argument,  for  compelling 
citizens  of  this  State  to  submit  their 
rights  to  rules  of  law  laid  down 
by  our  courts,  although  the  rules  on 
the  same  subject  established  else- 
where may  be  different,  and  whether 
the  cause  of  action  arose  here  or 
abroad.  On  the  whole,  we  believe 
that  this  special  branch  of  equity 
jurisdiction    should   not   be   extended 


beyond  the  limits  set  by  existing  au- 
thorities." 

54.  Cilman  v.  Ketcham,  84  Wis. 
60,  54  N.  VV.  395.  The  plaintiff  in  this 
action  was,  at  the  time,  a  resident  and 
citizen  of  the  State  of  New  York,  of 
which  State  the  corporation  was  a 
citizen,  and  he  was  served  with  an 
injunction  in  that  proceeding,  re- 
straining him,  as  a  creditor  of  the 
corporation,  from  commencing  any 
suit  against  it,  to  enforce  the  collec- 
tion of  his  debt,  in  order  that  the 
corporate  property  and  assets  might 
be  applied  by  the  receiver,  under  the 
authority  of  the  court  appointing 
him.  The  court  said  in  substance  as 
follows:  The  situation,  in  brief,  is 
that  after  the  plaintiff  had  been 
enjoined  by  a  competent  court  of  the 
jurisdiction  in  which  he  resided, 
from  bringing  any  action  against  the 
corporation,  so  that  he  should  not  ob- 
tain any  undue  preference  over  its 
other  creditors,  in  violation  of  the 
purpose  and  policy  of  the  law  of 
New  York,  and  the  proceeding  thus 
instituted,  the  plaintiff  came  into  the 
Circuit  Court  of  Wisconsin  and  com- 
menced an  action  to  recover  his  de- 
mand against  the  dissolved  corpora- 
tion. The  question  is  one  wholly  be- 
tween parties  residing  in  New  York, 
and    bound    by    the    proceedings    in 


154 


JUEISDICTION. 


§80 


§  80.  Same  subject;  English  Chancery.— It  is  well  settled  that 
the  English  Court  of  Chancery  has  jurisdiction  to  restrain  per- 
sons within  its  territorial  limits  from  doing  anything  abroad 
whether  the  thing  forbidden  be  a  conveyance,  or  other  act  in  pais, 
or  the  institution  of  an  action  in  a  foreign  court.55  Thus  that 
court  will  enjoin  a  creditor  of  a  debtor  in  bankruptcy  from  going 
abroad  and  there  obtaining  a  priority  over  other  creditors  in  evasion 
of  the  English  bankruptcy  laws.56 


question.  .  .  .  The  plaintiff  asks 
us  to  aid  him  in  violating  the  law  of 
his  own  State  and  evading  the  pro- 
cess of  its  courts.  Our  own  citizens, 
in  a  proper  case,  would  no  doubt  be 
protected  against  the  effect  of  such 
extra-territorial  act,  if  injurious  to 
their  interests  or  in  contlict  with  the 
laws  and  policy  of  Wisconsin.  Per 
Pinney,  J.,  who  then  referred  to  Ba- 
con v.  ttorne,  123  Pa.  St.  452,  453,  16" 
Atl.  794,  quoting  from  it  as  follows: 
"  As  before  observed,  both  of  these 
parties,  plaintiffs  and  defendant,  are 
residents  of  New  York.  They  come 
into  this  State  to  obtain  an  ad- 
vantage by  our  law  which  they  could 
not  obtain  by  their  own.  They  are 
seeking  to  nullify  the  law  of  their 
own  State,  and  ask  the  aid  of  our 
court  to  do  so.  This  they  cannot 
have.  If  for  no  other  reason  it  is 
forbidden  by  public  policy  and  the 
comity  which  exists  between  the 
[States.  This  comity  will  always  be 
enforced  when  it  does  not  conflict 
with  the  rights  of  our  own  citizens." 
55.  In  Penn  v.  Lord  Baltimore,  1 
Ves.  Sen.  444,  Lord  Hardwicke  recog- 
nized the  principle  that  equity,  as  it 
acts  primarily  in  personam,  and  not 
merely  in  rem,  may,  where  a  person 
against  whom  relief  is  sought  is  within 
the  jurisdiction,  make  a  decree,  upon 
the  ground  of  a  contract,  or  any 
equity  subsisting  between  the  parties, 


respecting   property    situated   out   of 
the    jurisdiction.      2    Lead.    Cas.    in 
Eq.     (4th    American    edition),    1806. 
Penn  v.  Lord  Baltimore  is  cited  with 
approval    by   Chief  Justice  Marshall, 
in  Massie   v.   Watts,   G   Cranch,    148, 
where   a   suit   was   instituted   in    the 
Circuit  Court  of  Kentucky  to  compel 
the  conveyance   by  the   defendant  of 
the   legal   title  of  land   in  Ohio,    on 
the  ground  that  he  had  notice,  when 
it  was  purchased,  of  the  prior  equity 
of   the   complainant.      In   Lord   Port- 
arlington   v.    Soulby,   3    Mylne   &   K. 
104,   106,  Lord  Chancellor  Brougham 
reviews   the    history   of   the   jurisdic- 
tion   to    restrain    parties    from    com- 
mencing   or    prosecuting    actions    in 
foreign      countries,      and     concludes: 
"  Nothing   can     be     more    unfounded 
than  the  doubts  of   the  jurisdiction. 
That    is    grounded,     like    all     other 
jurisdiction   of    the    court,    not   upon 
any  pretension  to  the  exercise  of  judi- 
cial and  administrative  rights  abroad, 
but  on  the  circumstance  of  the   per- 
son of  the  party,  on  whom  this  order 
is  made,   being  within   the  power   of 
the    court."      See     Earl    of    Oxford's 
Case,  1  Ch.  Rep.  1;  s.  c.  2  Lead.  Cas. 
in  Eq.  1316. 

56.  In  Mcintosh  v.  Ogilvie,  4  T. 
R.  193  n.,  3  Swanst.  365,  the  Lord 
Chancellor  said:  "Then  it  is  like 
a  foreign  attachment,  by  which  this 
court   will    not    suffer   a  creditor    to 


155 


§§  81,  82  Jurisdiction. 

§  81.  Comity  of  New  York  Chancery — Upon  considerations 
of  comity  the  former  court  of  chancery  in  New  York  would  not, 
except  in  very  special  cases,  even  where  it  had  the  power,  restrain 
a  suit  or  proceeding  already  commenced  in  a  court  of  competent 
jurisdiction  in  another  State,  or  in  any  of  the  Federal  courts.57 
The  usual  practice  in  such  cases  was  not  to  restrain  the  proceeding 
in  a  federal  court,  but  leave  the  party  interested  to  apply  for  a 
6tay  in  that  court  until  equitable  relief  should  be  granted  in  the 
court  of  chancery.58 

§  82.  Jurisdiction  of  non-resident's  personalty. — In  an  action, 
under  the  Wisconsin  statutes,  in  the  nature  of  a  creditor's  suit  to 
enforce  a  judgment  against  a  non-resident,  the  situs  of  debts  due 
him  by  persons  resident  in  Wisconsin,  and  evidenced  by  notes  and 
mortgages,  will  be  considered  as  at  the  domicile  of  such  resident 
debtors,  and  the  service  of  writs  of  injunction,  issued  in  Wisconsin, 
upon  the  resident  debtors,  restraining  them  from  paying  the  debts 
to  the  non-resident  judgment  debtor,  gives  the  Wisconsin  court 
jurisdiction  of  the  debts,  so  that  they  may  be  collected  and  applied 
to  the  payment  of  the  judgment,  though  the  non-resident  debtor 
does  not  appear  in  the  action.59 

gain   priority,    if    no    sentence   were  courts  of  this  State  can  exercise  jur- 

pronounced  before  the  bankruptcy.     I  isdiction  only  over  persons  and  prop- 

cannot   grant    a    prohibition    to  the  erty    within    its   territory,   but   it   is 

court  of  sessions,  but  I  will  certainly  familiar    law    through    its    tribunals 

make  an  order  on  the  party  here  to  it  may  subject  that  property  within 

restrain    him    from    getting   a   prior-  its  limits,  owned  by  non-residents,  to 

ity,   and  evading  the   laws   of   bank-  the  payment  of  demands  of  its  own 

ruptcy  here.     If  the  gentleman  were  citizens  against  them;   and  the  exer- 

not  going  abroad,  I  would  do  nothing;  cise  of  this  jurisdiction  in  no  respect 

but  as  he  is,  1  will  not  discharge  the  infringes  upon  the  sovereignty  of  the 

writ  without  his   giving  security  to  State  where   such   owners   are  domi- 

abide  the  event  of  the  cause."  ciled.     Every  Scate,  it  is  held,  owes 

57    Mead  v.  Merritt,  2  Paige,  402;  protection    to    its    own   citizens,    and 

Burgess  v.  Smith,  2  Barb.   Ch.  276;  when    non-residents    deal    with    them 

Schuyler  v.  Pelissier,  3  Edw.  Ch.  191.  it  is  a  just  and  legitimate  exercise  of 

58.  Coster  v.  Griswold,  4  Edw.  Ch.  authority  to  hold  and  appropriate  any 
364.  property  owned  by  such   non-residents 

59.  Bragg  v.  Gaynor,  82  Wis.  468,  to  satisfy  the  claims  of  its  citizens. 
55  N.  W.  919,  per  Pinney,  J.:     "The  Pennoyer  v.  Neff,  95  U.  S.  726,  24  L. 

150 


Jurisdiction. 


§83 


§  83.  Non-interference  with  courts  of  concurrent  jurisdiction. 
— Courts  of  equity  will  not  ordinarily  interfere  with  other  courts 
which  have  acquired  control  of  the  controversy  and  are  competent 
to  afford  relief.     This  rule  is  applied  where  courts  of  law  and 


Ed.  565.  This  jurisdiction  is  called  into 
exercise  and  attaches  where  property 
is  once  brougnt  under  the  control  of 
the  court,  by  seizure  or  acts  of  equiv- 
alent import,  and  which  stand  for 
and  represent  the  dominion  of  the 
court  over  the  thing,  and  in  effect, 
subject  it  to  the  control  of  the  court. 
This  may  be  by  the  levy  of  a  writ, 
or  by  the  mere  bringing  of  a  suit. 
'  It  is  immaterial,'  said  the  court,  by 
Mr.  Justice  McLean,  in  Boswell'a 
Lessee  v.  Otis,  9  How.  336,  13  L.  Ed. 
164, 'whether  the  proceedings  against 
the  property  be  by  an  attachment  or 
bill  in  chancery.'  The  property  may 
be  bound  without  actual  service  within 
the  jurisdiction  of  process  upon  the 
owner,  where  the  only  object  of  the 
proceeding  is  to  enforce  a  claim 
against  the  property  specifically  of  a 
nature  to  bind  the  title.  Notice  of 
the  proceeding  may  be  given  by  pub- 
lication as  prescribed  in  the  statute. 
Cooper  v.  Reynolds,  10  Wall.  308, 
317,  19  L.  Ed.  931;  Heidritter  v. 
Elizabeth  Oil  Cloth  Co.,  112  U. 
B.  300,  302,  5  S.  Ct.  135,  28  L. 
Ed.  729;  and  the  property  will  be 
effectually  bound  by  the  judgment 
that  may  follow.  That  local  laws 
may  thus  fix  the  situs  of  debts  at 
the  domicile  of  the  debtor  for  such 
purposes,  that  under  such  laws  they 
may  be  attached,  and  compulsory 
payment  will  protect  the  debtor  ev- 
erywhere against  a  suit  for  the  re- 
covery of  the  same  debt  by  the  cred- 
itor, is  well  established  by  many 
adjudicated  cases,  among  which  are 
Allen  v.  Watt,  79  111.  284;  Bethel  v. 


Judge  of  Superior  Court,  57  Mich. 
379,  24  N.  W.  112;  Newland  v.  Cir- 
cuit Judge  of  Wayne  County,  85 
Mich.  151,  48  N.  W.  544;  Railway 
Company  v.  Crane,  102  111.  249;  Mor- 
gan v.  Neville,  74  Pa.  St,  52;  Coch- 
ran v.  Fitch,  1  Sandf.  Ch.  142;  Will- 
iams v.  lngersoll,  89  N.  Y.  523.  And 
the  correctness  of  this  doctrine  is 
distinctly  recognized  in  Guillander  v. 
Howell,  35  N.  Y.  658,  659,  as  an  ex- 
ception to  the  general  rule  as  to  the 
nit  us  of  personalty  at  the  domicile  of 
the  owner.  Garnishee  process,  under 
our  statute,  is  only  the  equivalent  of 
an  equitable  attachment,  and  creates 
a  lien  in  like  manner  as  by  filing  a 
bill,  and  is  in  every  essential  element, 
as  far  as  it  extends,  a  creditors'  bill. 
La  Crosse  Nat.  Bank  v.  Wilson,  74 
Wis.  391,  43  N.  W.  153;  and  a  cred- 
itors' bill  is  an  equitable  levy.  In 
re  Milburn,  59  Wis.  34.  By  the  in- 
junction granted  in  this  case  against 
the  defendants  resident  in  Wisconsin, 
the  court  in  the  most  effective  man- 
ner asserted  its  dominion  over  the 
indebtedness  sought  to  be  reached, 
and  there  can  be  no  doubt  that  these 
debts  were  thus  brought,  by  reason 
of  this  equitable  levy,  within  the 
control  of  the  court  for  the  purposes 
of  this  action,  which  was  made  ef- 
fective by  its  final  judgment,  ap- 
pointing a  receiver  to  collect  them 
and  apply  the  proceeds  to  the  plain- 
tiff's judgment.  .  .  .  Practically, 
the  note  or  bond  represents  money 
due  and  to  come  from  the  party  li- 
able in  one  State  to  a  party  in  an- 
other who  holds  merely  the  evidence 


157 


§83 


Jurisdiction. 


equity  have  concurrent  jurisdiction  of  the  res,  and  a  court  of  law 
has  first  acquired  jurisdiction  of  the  controversy  by  an  action 
brought  therein.60  Where  Federal  and  State  courts  have  concur- 
rent equity  jurisdiction  the  rule  is  established  that  the  court  which 
first  obtains  jurisdiction  shall  retain  it  to  the  end.61     A  suit  in 


of  the  existence  of  the  debt  for  it; 
and  «it  seems  but  reasonable  and 
proper  to  bold  that  the  situs  of  the 
debt,  for  the  purposes  here  in  ques- 
tion, is  at  the  domicile  of  the  debtor, 
where  collection  of  it  may  be  en- 
forced, and  the  property  pledged  as 
security  may  be  subjected  and  ap- 
plied to  its  payment.  In  no  other 
jurisdiction  could  the  security  be 
made  available;  and  it  seems  clear 
that  the  subject-matter  to  which 
the  title  or  claims  in  question  relate 
is  the  property  and  not  the  notes, 
which  are  merely  the  evidence  of  its 
existence.  Owen  v.  Miller,  10  Ohio 
St.  143.  .  .  .  We  hold,  therefore,  that 
the  property  described  in  the  com- 
plaint was  not  only  property  in  the 
State,  but  sufficient  to  found  the  jur- 
isdiction of  the  court,  and  that  the 
objections  to  jurisdiction  are  not 
well  taken."  In  such  a  case,  the  in- 
junction issued  in  Wisconsin  operates 
as  an  equitable  levy,  by  which  the 
intangible  personal  property  of  the 
non-resident  is  transferred  from  his 
domicile  and  brought  within  the  jur- 
isdiction of  the  court,  though  he  does 
not  come  within  it,  and  is  not  served 
in  the  injunction  sent,  except  by 
publication. 

60.  Johnston  v.  Young,  I.  R.  10 
Eq.  403,  where  the  vice-chancellor 
said:  "The  action  which  is  sought 
to  be  restrained  is  one  brought 
against  a  speculator  on  the  Stock 
Exchange  by  his  stock  broker — an 
action   which    it   is   perfectly   compe- 


tent for  a  court  of  common  law  to 
entertain.  ...  All  that  can  be  said 
is  that  there  is  a  concurrent  juris- 
diction. That  a  bill  for  an  account 
could  have  been  maintained  by  the 
plaiiitilF,  had  he  come  here  in  the 
first  instance  is  admitted;  but  there 
Ixing  a  concurrent  jurisdiction  am 
I  justified  in  interfering?  This  is 
clearly  a  nmtter  of  discretion,  and 
that  discretion  ought  not  to  be  exer- 
cised unless  the  court  is  satisfied 
that  justice  requires  it.  I  think  that 
the  policy  of  the  law  at  the  present 
day  so  far  from  sending  a  party 
from  one  court  to  another,  is  as  far 
as  possible  to  provide  that  relief 
shall  be  fully  administered  by  the 
court  to  which  the  suit  is  first  at- 
tached." 

See,  also,  Birmingham  Ry.  &  E. 
Co.  v.  Birmingham  Traction  Co.,  121 
Ala.  475,  25  So.  777;  Pueblo  Chicago 
Lumber  Co.  v.  Danziger,  7  Colo.  App. 
149,  42  Pac.  683. 

Construction  of  code  provi- 
sion. A  code  provision  that  an  in- 
junction to  stay  proceedings  under 
a  judgment  shall  not  be  granted  in 
an  action  brought  in  any  other  court 
than  that  in  which  the  judgment  was 
rendered,  applies  to  any  party  seek- 
ing to  stay  the  judgment.  Mallory 
v.  Dauber,  83  Ky.  239,  construing 
Ky.  Code,  §  285. 

61.  New  Jersey  Zinc  Co.  v.  Frank- 
lin Iron  Co..  29  N.  J.  Eq.  422 ;  Home 
Ins.  Co.  v.  Howell,  24  N.  J.  Eq.  238; 
Akerly  v.  Vilas,  15  Wis.  401;   Riggs 


158 


Jurisdiction. 


§83 


equity  will  not  lie  to  restrain  the  execution  of  a  writ  of  assistance 
issued  in  another  suit  in  equity,  whether  the  second  suit  is  brought 
in  the  same  or  in  a  different  court,  by  a  party  or  by  a  stranger  to 
the  first  suit.62  One  who  complains  that  a  judgment  was  rendered 
against  him  in  the  Supreme  Court  after  the  appeal  had  in  reality 
been  dismissed,  cannot  have  the  execution  of  the  judgment  re- 
strained by  proceeding  in  another  court.  He  should  apply  to  the 
Supreme  Court  to  have  the  judgment  set  aside.63  The  court 
having  jurisdiction  of  proceedings  for  the  dissolution  of  an  insol- 
vent corporation  may,  where  a  receiver  has  been  appointed,  enjoin 
the  prosecution  of  actions  against  the  corporation  in  other  courts.64 


v.  Johnson  Co.  6  Wall.  (U.  S.),  1G6, 
18  L.  Ed.  7G8;  Peck  v.  Jenness,  7 
How.    (U.  S.)    624,   12  L.  Ed.  841. 

62.  Endter  v.  Lennon,  4G  Wis.  299, 
50  N.  W.  194;  Platto  v.  Deuster,  22 
Wis.  482.  In  Stein  v.  Benedict,  83 
Wis.  G03.  53  N.  W.  891,  Pinney,  J., 
Baid:  ".It  is  well  settled  that  one 
circuit  court  of  this  State  will  not 
restrain  the  collection  or  enforcement 
of  a  judgment  rendered  in  another 
circuit  court  of  the  State  for  legal 
or  equitable  relief,  and  the  rule  is  the 
same  whether  the  second  action  be 
brought  by  a  party  or  a  stranger 
to  the  first.  The  proper  course  is 
to  apply  by  petition  for  relief  in  the 
first  suit.  .  .  .  This  must  be  regarded 
as  settled  beyond  dispute." 

See,  also,  Cardinal  v.  Eau  Claire 
Lumber  Co.,  75  Wis.  404,  44  N.  W. 
7G1;  Coon  v.  Seymour,  71  Wis.  340, 
37  N.  W.  243;  Orient  Ins.  Co.  v. 
Sloan,  70  Wis.  611,  36  N.  W.  388. 

A  judgment  of  the  Circuit 
Court,  affirmed  by  the  Supreme 
Court,  cannot  be  impeached,  or  set 
aside,  in  an  action  in  equity,  brought 
for  that  purpose,  for  any  ground  ap- 
parent on  the  record  at  the  time  of 
its   rendition  and   affirmance.      Arm- 


strong v.  Poole,  30  W.  Va.  666,  5 
S.  E.  257.  The  court  in  which  a 
judgment  was  rendered  alone  ha3 
jurisdiction  to  enjoin  it.  McConnell 
v.  Rour,  8  Ky.  Law,  343,  1  S.  W. 
682. 

63.  Phelan  v.  Johnson,  80  Iowa, 
727,  46  N.  W.  68.  Plaintiff  sued 
defendant  in  the  Supreme  Court  for 
damages  for  breach  of  a  contract  to 
sell  goods,  and  defendant,  after  ap- 
pearing in  the  action,  sued  plaintiff 
in  the  Court  of  Common  Pleas  of 
New  York  city  and  county  for  a  bal- 
ance alleged  to  be  due  on  the  pur- 
chase price  of  the  good3  sold,  and 
recovered  judgment  by  default.  Held 
that,  even  if  judgment  had  not  been 
entered  in  the  Court  of  Common 
Pleas  or  even  if  the  judgment  were 
irregular  for  want  of  service,  the  Su- 
preme Court  had  no  power  to  re- 
strain defendant  from  proceeding  in 
that  court,  though  his  cause  of  action 
could  be  set  off  in  the  action  brought 
by  plaintiff.  Bradley  Salt  Co.  v. 
Keating   (Sup.),  16  N.  Y.  Supp.  795. 

64.  Phoenix  Foundry  Co.  v.  North 
River  Construction  Co.,  33  Hun  (N. 
Y.),  156. 

See  National  Bank  v.  Goolsby,   12 


159 


§84 


Jurisdiction. 


This  injunctive  power  is  incidental  to  the  power  of  appointing  a 
receiver  and  is  exercised  to  prevent  a  waste  of  the  corporate  funds 
and  preserve  them  for  distribution  under  the  court's  control.65 
The  rule,  however,  that  a  suit  will  not  be  repeated  in  the  same  or 
another  court  of  concurrent  jurisdiction  applies  only  where  the 
controversy  and  relief  sought  are  substantially  incidental  in  the 
two  suits.  Thus  the  institution  of  an  action  by  a  minority  stock- 
holder in  a  railroad  company,  the  granting  of  a  restraining  order, 
and  an  order  to  show  cause  why  a  receiver  should  not  be  appointed, 
do  not  so  draw  the  property  within  the  jurisdiction  of  the  court  as 
to  bar  a  subsequent  action  by  the  trustee  in  a  mortgage  upon  the 
property  for  its  foreclosure  and  the  appointment  of  a  receiver.66 

§  84.  State  courts  versus  federal. — A  State  court  has  no  au- 
thority to  enjoin  the  proceedings  of  a  federal  court  in  a  suit  in 
which  the  federal  court  has  first  acquired  jurisdiction  of  the  con- 
troversy and  the  res.61  And  this  on  the  consideration  of  necessity 
as  well  as  comitv.68     Thus  when  a  federal  court  has  ordered  the 


Tex.  Civ.  App.  362,  35  S.  W.  713, 
holding,  also,  that  a  receiver  may 
be  enjoined  from  interfering  with  at- 
tached property  where  another  court 
has  jurisdiction  of  the  attachment 
proceedings  in  which  the  right  to  the 
property  is  in  issue. 

65.  Attorney  Gen.  v.  Guardian  L. 
Ins.  Co.,  77  N.  Y.  272;  Erie  R.  Co. 
v.  Ramsey,  45  JN.  Y.  637,  overruling 
Schell  v.  Erie  R.  Co.    51  Barb.  368. 

66.  Pennsylvania  Co.  v.  Jackson- 
ville, etc.,  R.  Co.,  55  Fed.  131. 

67.  Amy  v.  Supervisors,  11  Wall. 
(U.  S.)  136,  20  L.  Ed.  101;  Super- 
visors v.  Durant,  9  Wall.  (U.  S.)  415, 
19  L.  Ed.  732;  Mayor  v.  Lord,  9 
Wall.  (U.  S.)  409,  19  L.  Ed.  704; 
Riggs  v.  Johnson  Co.,  6  Wall.  (U.  S.) 
166,  18  L.  Ed.  768;  McKim  v.  Voor- 
hies,  7  Cranch  (U.  S.),  279,  3  L. 
Ed.   342.     See  Rio  Grande  R.   Co  ▼. 


Gomila,  132  U.  S.  478,  10  S.  Ct.  155, 
33  L.  Ed.  400. 

In  California  it  is  provided  by 
the  code  that  an  injunction  shall  not 
be  granted  in  the  State  courts  to  stay 
proceedings  in  the  courts  of  the 
United  States.  Cal.  Civ.  Code,  1903, 
§  3423. 

68.  Covell  v.  Heyman,  111  U.  S. 
176,  182,  4  S.  Ct.  355,  28  L. 
Ed.  390,  where  the  court  said: 
"The  forbearance  which  courts  of 
co-ordinate  jurisdiction  adminis- 
tered under  a  single  system,  exer- 
cise toward  each  other,  whereby 
conflicts  are  avoided,  by  avoiding  in- 
terference with  the  process  of  each 
other,  is  a  principle  of  comity  with 
perhaps  no  higher  sanction  than  the 
utility  which  comes  from  concord; 
but  between  State  and  federal  courts 
it  is  something  more.  It  is  a  prin- 
ciple of  right  and  of  law  and  there 


160 


JUBISDICTION. 


§85 


sale  of  a  railroad  and  its  officer  has  advertised  the  sale  its  juris- 
diction is  exclusive  and  cannot  be  interfered  with  by  a  State 
court69 

§  85.  Same  subject;   Court  first  acquiring  jurisdiction. — As 

between  State  and  federal  courts  which  have  concurrent  jurisdic- 
tion the  rule  is  settled  that  the  court  which  first  properly  assumes 
jurisdiction  will  retain  it  to  the  end.     Thus,70  where  a  receiver  is 


fore  of  necessity.  It  leaves  nothing 
to  discretion  or  mere  convenience. 
These  courts  do  not  belong  to  the 
same  system  so  far  as  their  jurisdic- 
tion is  concurrent;  and  though  they 
co-exist  in  the  same  space  they  are 
independent  and  have  no  common  su- 
perior. They  exercise  jurisdiction,  it 
is  true,  within  the  same  territory, 
but  not  in  the  same  plane;  and  when 
one  takes  into  its  jurisdiction  a  spe- 
cific thing,  that  res  is  as  much  with- 
drawn from  the  judicial  power  of  the 
other,  as  if  it  had  been  carried  phys- 
ically into  a  different  territorial  sov- 
ereignty. To  attempt  to  seize  it  by 
a  foreign  process  is  futile  and  void." 

69.  Central  Nat.  Bank  v.  Hazard, 
49  Fed.  293. 

70.  In  re  Schuyler'  Steam  Tow 
Boat  Co.,  64  Hun,  384,  19  N.  Y. 
Supp.  565,  aff'd  136  N.  Y.  169,  32 
N.  E.  623.  per  Peckham,  J.:  "A  dif- 
ferent rule  does  not  prevail  because 
one  court  is  a  State  and  the  other  a 
United  States  court.  It  is  a  question 
of  jurisdiction  in  each  case,  and  the 
same  principles  apply  in  both.  The 
same  rule  obtains  whether  one  court 
is  of  common  law  or  equitable  juris- 
diction and  the  other  is  a  court  of 
admiralty,  although  the  nature  of 
the  jurisdiction  of  these  courts 
is  so  different.  Mr.  Chief  Justice 
Taney,  in  his  dissenting  opinion 
in     Taylor     v.      Carryl     20      How. 


583-600,  15  L.  Ed.  1028,  endeavored 
to  establish  that  such  a  difference 
in  the  nature  of  the  jurisdiction  of 
common  law  and  admiralty  courts 
over  the  vessel  which  was  attached 
and  libeled  ought  to  make  a  differ- 
ence in  the  decision  to  be  made.  The 
jurisdiction  of  the  District  Court  of 
the  United  States  in  that  case  was 
invoked  for  the  purpose  of  collecting 
seamen's  wages  by  the  enforcement 
of  the  maritime  lien  upon  the  vessel 
given  for  that  class  of  services,  and 
it  was  said  that  such  a  lien  is  by 
well-established  authorities  prior  and 
paramount  to  all  other  claims  on  the 
vessel,  and  must  be  first  paid,  and 
that  by  the  constitution  and  laws  of 
the  United  States  the  district  courts, 
acting  as  courts  of  admiralty,  were 
the  only  courts  which  had  jurisdic- 
tion over  such  lien  or  that  were  au- 
thorized to  enforce  it,  and  that  it 
was  the  duty  of  that  court  to  do  it. 
The  chief  justice  then  argued  that,  as 
the  attachment  of  tne  vessel  under 
the  State  laws  and  by  process  from 
the  State  court  only  bound  the  in- 
terest of  the  owner,  while  the  mari- 
time lien  upon  the  vessel  bound  the 
res  itself,  the  court  which  had  juris- 
diction only  of  a  subordinate  and  in- 
ferior interest  snould  not  be  able,  by 
virtue  of  such  an  attachment,  to  close 
all  proceedings  to  enforce  the  para- 
mount lien  for  wages  for  12  months, 


161 


11 


§85 


Jurisdiction. 


appointed  by  a  State  court  the  title  of  the  property  vests  in  him  on 
the  filing  of  his  bond  and  relates  back  to  the  date  of  entry  of  his 
appointment  and  the  court  appointing  him  acquires  exclusive  juris- 
diction of  the  property  and  can  enjoin  creditors  from  enforcing 
libels  instituted  against  such  property  in  a  federal  court  between 


as  by  the  laws  of  the  State  that 
period  or  more  might  elapse  between 
the  seizure  of  the  vessel  under  the 
attachment  and  its  sale  or  release 
from  the  process.  The  case  was  de- 
cided upon  what  a  majority  of  the 
court  held  was  no  new  principle,  and 
it  was  solved  by  the  application  of 
what  was  said  to  be  a  principle  that 
was  comprehensive,  and  just,  and 
equal,  and  opposing  no  hindrance  to 
the  efficient  administration  of  judi- 
cial power.  The  jurisdiction  of  the 
State  court  was  upheld,  notwith- 
standing its  limited  character,  and 
that  of  the  admiralty  court  was  de- 
nied, althougn  it  was  the  sole  court 
where  the  lien  of  the  seamen  for  his 
wages  could  be  originally  enforced 
against  the  vessel  itself.  The  case 
shows  that  the  fact  that  the  different 
courts  in  the  Christian  Jansen  Co. 
case,  supra,  were  courts  of  the  same 
State,  and  of  concurrent  jurisdiction, 
is  immaterial,  and  the  same  rule 
would  hold  if  one  court  were  a  State 
and  the  other  a  United  States  tri- 
bunal. The  cases  cited  by  the  coun- 
sel for  these  appellants  do  not  in- 
volve the  question  as  to  the  effect 
of  the  appointment  of  a  receiver  in 
an  action  or  proceeding  where  the 
court  has  obtained  jurisdiction  by 
the  proper  service  of  papers.  This 
court  has  held  that  the  effect  is,  in 
a  case  of  this  kind,  to  take  the 
property  of  a  corporation  into  the 
custody  of  the  law,  and  that  the 
court  has  power  to  preserve  and  pro- 


tect it.  As  was  said  in  Heidritter 
v.  Oil  Cloth  Co.,  112  U.S.  305,  5  Sup. 
Ct.  135,  28  L.  Ed.  729 :  'When  the  ob- 
ject of  the  action  requires  the  control 
and  dominion  of  the  property  in- 
volved in  the  litigation,  that  court 
which  first  acquires  possession,  or 
that  dominion  which  is  equivalent, 
draws  to  itself  the  exclusive  right 
to  dispose  of  it.'  That  dominion  was 
acquired  by  the  order  appointing  the 
receiver  in  this  proceeding.  The  same 
principle  was  declared  in  Union 
Trust  v.  Rockford  R.  Co.,  6  Biss. 
197;  Steele  v.  Sturges,  5  Abb.  Pr. 
442;  Railroad  Co.  v.  Lewis,  81  Tex. 
1,  16  S.  VV.  647.  See.  also,  Hines  v. 
Rawson,  40  Ga.  356,  where  the  court 
said:  "  In  this  case  the  plaintiffs  in 
error  having  gone  voluntarily  into 
the  State  court  and  an  injunction 
having  issued  against  them  by  that 
court,  restraining  further  action  un- 
til the  assets  of  the  estate  could  be 
marshalled,  it  was  a  contempt  of 
the  authority  of  the  State  court,  into 
which  the  parties  had  voluntarily 
come  and  which  had  obtained  pos- 
session of  the  controversy,  for  the 
plaintiffs  to  commence  proceedings  in 
the  United  States  court  upon  the 
same  matter  till  tne  dissolution  of 
the  injunction  in  the  State  court 
and  the  State  court  had  the  power 
to  maintain  its  dignity  and  enforce 
its  authority  by  punishing  the  at- 
torneys of  the  complainants  for  vio- 
lating its  injunction  by  bringing  a 
suit  in  the  federal  court." 


162 


Jurisdiction. 


86 


the  date  of  the  receiver's  appointment  and  the  filing  of  his  bond. 
And  similarly  a  federal  court  which  has  first  obtained  jurisdiction 
will  retain  it  to  the  exclusion  of  the  State  courts.71  And  where 
criminal  proceedings  have  been  commenced  in  a  State  court  the 
United  States  Circuit  Court  has  no  jurisdiction  to  enjoin  their 
prosecution.72 

§  86.  Federal  comity  towards  State  courts. — Where  a  cred- 
itor's bill  has  been  filed  in  the  United  States  Circuit  Court,  the 
ordinary  rule  to  show  cause  issued,  with  a  restraining  order,  and 
a  temporary  received  appointed,  and  at  the  return  day  of  the  rule 
defendants  show  that  a  similar  proceeding  has  been  theretofore 
begun  in  the  State  court,  and  jurisdiction  duly  acquired,  it  has 
been  decided  that,  as  the  proceedings  had  in  the  Federal  court  were 
merely  preliminary  and  ex  parte,  no  further  action  will  be  taken 
therein  until  the  course  of  the  State  court  has  been  developed,  but 
that  the  pendency  of  the  action  in  the  State  court  does  not  abate 
the  suit  in  the  Federal  court,  nor  deprive  that  court  of  its  juris- 
diction.73 


71.  Rio  Grande  R.  Co.  v.  Gomila, 
132  U.  S.  478,  485,  10  S.  Ct. 
155,  33  L.  Ed.  400,  per  Field, 
J. :  "  Nor  is  there  anything  in 
the  doctrine  of  the  exclusive  doc- 
trine of  the  federal  court  to  dispose 
of  the  property  in  its  custody  with- 
out any  intervention  of  the  probate 
court,  until  its  judgment  is  satisfied, 
that  in  any  way  trenches  upon  that 
doctrine  equally  well  established  that 
where  a  State  and  a  federal  court 
have  concurrent  jurisdiction  over  the 
same  subject  matter  that  court  which 
first  obtains  jurisdiction  will  retain  it 
to  the  end  of  the  controversy,  either 
to  the  exclusion  of  the  other  or  to 
its  exclusion  so  iar  as  to  render  the 
latter's  decision  subordinate  to  the 
former ;  a  doctrine  which  with  some 
exceptions  is  recognized  in  both  fed- 


eral and  State  courts.  Wallace  v. 
McConnell,  13  Pet.  136,  143,  10  L. 
Ed.  95;  Taylor  v.  Taintor,  16  Wall. 
366,  370,  21  L.  Ed.  287." 

72.  Fitts  v.  McGhee,  172  U.  S. 
516,   19  Sup.  Ct.  269,  43  L.  Ed.  535. 

As  to  enjoining  criminal  proceed- 
ings generally,   see   §§   58-60a  herein. 

73.  Howlett  v.  Central,  etc.,  Land 
Co.,  56  Fed.  161,  per  Simonton,  J.: 
"  There  can  be  no  doubt  that  on  the 
30th  March,  1893,  when  the  sum- 
mons was  served  on  the  defendant 
the  State  court  acquired  jurisdiction 
over  the  case  and  all  subsequent  pro- 
ceedings therein.  The  pendency  of 
the  action  in  the  State  court  would 
not  abate  this  suit,  or  deprive  this 
court  of  jurisdiction.  Gordon  v.Gilfoil. 
99  U.  S.  178,  25  L.  Ed.  383.  The  matter 
presents  itself  to  the  discretion  of  the 


163 


§87 


Jurisdiction. 


§  87.  Federal  jurisdiction  independent  of  State  laws  and  prac- 
tice.74— The  remedies  in  the  federal  courtn  are  to  be  at  common 
law  or  in  equity  not  according  to  the  practice  of  the  State  courts 


eourt,    and    calls    upon    it   to   decide 
whether,    after    notice    of    the    pen- 
dency   of    proceedings    of    the    same 
character  in  the  State  court,  it  will 
not   stay   its   hands.  ...  It  is   a    fa- 
miliar   doctrine    that    when    a    court 
has  acquired  jurisdiction  it  can  and 
will  retain  it  for  all  purposes  within 
its  scope.     Ober  v.  Gallagher,  93  U. 
S.     199,    23    L.    Ed.    829;    Buck    v. 
Colbath,    3    Wall.    334,    18    L.    Ed. 
257;     Wilmer     v.     Railroad     Co.,     2 
W^oods,    409.      What    has    heretofore 
been  done  in  this  court  is  preliminary 
— we  may  spy,  tentative — in  its  char- 
acter.   The  proceedings  were  ex  parte. 
All  orders  were  temporary,  based  en- 
tirely   on   the    surface   of   the    state- 
ments made,  reserved  for  full   inves- 
tigation and  determination  upon  the 
hearing  of   the   rule   to   show   cause. 
The  appointment  of  a  temporary  re- 
ceiver   was    simply    to    prevent    any 
waste   or   loss   pending  this   hearing. 
The  eontrol  of  the  case  has  not  been 
assumed.       The    proceedings    in    the 
State    court    are    in    full    conformity 
with  the  practice   of  that  court.     It 
gave  jurisdiction  to  it  before  that  of 
this  court  attached.     It  is   a  credit- 
ors' bill.     The  same  character  of  re- 
lief is  f.sked  in  that  case  as  in  the 
case  here.    Ample  justice  can  be  done 
in  the  State  court  as  here.     Obeying 
and  heartily   indorsing  the  law   laid 
down    by    the    bupreme    Court,    this 
court  will  hold  its  hand.     No  further 
action  will  be  taken  until  the  course 
of   the    State    court    has   been   devel- 
oped." 

74.  "  Chancery    jurisdiction  is 
conferred  on  the   conrts  of  the 


United  States  with  the  limitation 
'  that  suits  in  equity  shall  not  be 
sustained  in  either  of  the  courts  of 
the  United  States  in  any  case  where 
plain,  adequate,  and  complete  rem- 
edy may  be  had  at  law.'  The  rules 
of  the  High  Court  of  Chancery  of 
England  have  been  adopted  by  the 
courts  of  the  United  States,  and 
there  is  no  other  limitation  to  the 
exercise  of  a  chancery  jurisdiction  by 
these  courts  except  the  value  of  the 
matter  in  controversy,  the  residence 
or  character  of  the  parties,  or  a  claim 
which  arises  under  a  law  of  the  Uni- 
ted States,  and  which  has  been  de- 
cided against  in  a  State  court. 

"  In  exercising  this  jurisdiction, 
the  courts  of  the  Union  are  not  lim- 
ited by  the  chancery  system  adopted 
b^  any  State,  and  they  exercise  their 
functions  in  a  State  where  no  court 
of  chancery  has  been  established.  The 
usages  of  the  High  Court  of  Chan- 
cery of  England,  wherever  the  juris- 
diction is  exercis?d,  govern  the  pro- 
ceedings. This  may  be  said  to  be 
the  common  law  of  chancery,  and 
siince  the  organization  of  the  gov- 
ernment, it  has  been  observed." 
State  v.  Wheeling  &  Belmont  Bridge 
Co.,  13  How.  (U.  S.)  518,  563,  14  L. 
Ed.  249.     Per  Mr.  Justice  McLean. 

Federal  jurisdiction  depend- 
ent upon  amount  involved.  See 
Eaton  v.  Hoges,  141  Fed.  64,  72 
C.  C.  A.  74;  Louisville  &  N.  R.  Co. 
v.  Bitterman,  14*  Fed.  34;  Shewalter 
v.  Lexington,  143  Fed.  161;  Board 
of  Trade  v.  Cella  Commission  Co., 
145   Fed.  28. 


164' 


Jurisdiction.  §  88 

but  according  to  the  principles  of  common  law  and  equity  aa 
settled  in  the  federal  courts  and  as  regulated  by  Acts  of  Congress ; 
and  the  Legislature  of  a  State,  by  prescribing  an  action  at  law  to 
enforce  even  statutory  rights  cannot  oust  a  federal  court  sitting  in 
equity  of  its  jurisdiction  to  enforce  such  rights  provided  they  are 
of  an  equitable  nature.75  Thus,  though  an  Alabama  statute  gives 
either  an  action  at  law  or  a  remedy  in  equity  to  enforce  a  me- 
chanic's lien,  yet  proceedings  in  a  federal  court  may  be  had  in 
equity  because  such  proceedings  are  essentially  of  an  equitable 
nature.75 

§  88.  Federal  injunction  of  proceedings  in  State  courts The 

Revised  Statutes  of  the  United  States,  provide  that  "  the  writ  of 
injunction  shall  not  be  granted  by  any  court  of  the  United  States 
to  stay  proceedings  in  any  court  of  a  State  except  in  cases  where 
such  injunction  may  be  authorized  by  any  law  relating  to  proceed- 
ings in  bankruptcy."77  The  language  of  the  statute  is  plain  and 
the  decisions  uniform  that,  with  the  exception  named  in  the  statute, 
a  federal  injunction  will  not  be  granted  to  stay  pending  proceedings 
in  the  State  courts.78     The  prohibition  of  injunctions  against  the 

75.  Hooper  v.  Scheimer,  23  How.  the  federal  court  has  acted  without 
235,  16  L.  Ed.  452;  Sheirburn  v.  Cor-  authority  the  injunction  may  be  dis- 
dova,  24  How.  423,  16  L.  Ed.  741;  regarded  or  the  parties  be  enjoined 
Whitehead  v.  Shattuck,  138  U.  S.  from  attempting  to  enforce  it.  Kitt- 
146,  152,  11  S.  Ct.  276,  34  L.  Ed.  ridge  v.  Emerson,  15  N.  H.  227. 
873;  Scott  v.  Neely,  140  U.  S.  106.  78.  The  Mamie,  110  U.  S.  742,  4 
11  S.  Ct.  712,  35  L.  Ed.  358;  Smyth  S.  Ct.  194,  28  L.  Ed.  313;  Dial  v. 
v.  New  Orleans  Canal  &  Banking  Co.,  Reynolds,  96  U.  S.  340,  24  L. 
141  U.  S.  656,  12  S.  Ct.  113,  35  L.  Ed.  644;  Haines  v.  Carpenter,  91 
Ed.  891.  U.   S.   255,   23   L.    Ed.   345;    Peek   v. 

76.  Sheliield  Furnace  Co.  v.  With-  Jenness.  7  How.  620.  12  L.  Ed.  841 ; 
erow,  149  U.  S.  574,  13  S.  Ct.  936.  Diggs    v.    Wolcott.    4    Cranch,    179; 

77.  Judiciary  Act  of  March  2,  Dillon  v.  Railway  Co.,  43  Fed.  109. 
1793,  §  5,  Rev.  Stat.  §  720,  U.  S.  The  United  States  Circuit  Court  has 
Comp.   Stat.   1901.  p.  581.  no  jurisdiction  to  enjoin   proceedings 

The  jurisdiction  of  a  federal  in  a  State  court  except  where  the 
district  court  to  issue  injunctions  power  is  ronferred  by  statute  or  is 
to  stay  proceedings  in  State  courts  necessary  to  give  effect  to  proceed- 
where  petitions  in  bankruptcy  have  ings  first  had  in  the  Circuit  Court, 
been  filed  may  ue  inquired  into  in  Yick  Wo  v.  Crowley,  26  Fed.  207. 
the  State  courts;  and  if  it  is  found 

165 


§  89  Jurisdiction. 

State  courts  applies  to  the  officers  and  parties  in  the  courts  as  well 
as  to  the  courts  themselves;  and  therefore  a  federal  court  has  no 
power  on  the  complaint  of  a  legatee  and  an  executor  under  a  will 
probated  in  one  State  to  enjoin  an  administrator  appointed  in  an- 
other State  from  distributing  the  funds  under  his  control  to  the 
heirs  at  law.79  This  provision  of  the  statutes  does  not  prevent  a 
Federal  Circuit  Court  from  granting  ancillary  relief  in  the  form 
of  injunction  in  aid  of  a  decree  in  a  State  taxation  suit  where 
jurisdiction  has  been  acquired  as  to  the  State  and  its  officers  by  the 
State  voluntarily  submitting  thereto.80  The  prohibition  before 
quoted  was  not  at  all  affected  by  section  1979  of  the  Revised 
Statutes,  which  was  enacted  on  April  20,  1871,  as  a  part  of  the 
civil  rights  bill.81  In  this  connection  it  is  decided  that  a  suit 
against  the  attorney-general  of  a  State  to  prevent  him  from  en- 
forcing an  unconstitutional  enactment  to  the  injury  of  the  rights 
of  the  complainant  is  not  a  suit  against  the  State  in  violation  of 
the  eleventh  amendment  to  the  constitution  denying  jurisdiction 
to  a  federal  court  in  such  a  case.82 

§  89.  Same  subject ;  where  suits  not  begun  in  State  court. — A 

79.  Whitney  v.  Wilder,  54  Fed.  overrule  Tuchman  v.  Welch,  42  Fed. 
554_  548,  where   it  was  held  that  since  a 

80.  Gunter  v.  Atlantic  Coast  Line  State  law  prohibiting  the  sales  of  in- 
R.  Co.,  200  U.  S.  273,  26  Sup.  Ct.  toxicating  liquors  by  non-resident 
252    50  L.  Ed.  477.  importers,   in   the   same   packages   in 

81.  Hemsley  v.  Myers,  45  Fed.  which  they  were  brought  into  the 
283,  section  1979,  is  as  follows:  State,  is  void  as  being  in  contraven- 
"  Every  person  who,  under  color  of  tion  of  the  Interstate  Commerce 
any  statute,  ordinance,  regulation,  Clause  of  the  federal  constitution, 
custom  or  usage  of  any  State  or  ter-  where  a  State  court  has  enjoined  such 
ritory  subjects,  or  causes  to  be  sub-  sales  an  injunction  will  lie  from  the 
iected  any  citizen  of  the  United  federal  courts  against  the  institution 
States  or  other  person  within  the  of  contempt  proceedings  by  the 
jurisdiction  thereof,  to  the  depriva-  county  attorney  for  the  violation  of 
tion  of  any  rights,  privileges  or  im-  the  State  injunction,  under  Comp. 
munities  secured  by  the  constitution  Laws  of  Kansas,  1885,  ch.  13,  §  35. 
and  laws,  shall  be  liable  to  the  party  82.  Consolidated  Gas  Co.  v.  New 
injured  in  an  action  at  law,  suit  in  York,  157  Fed.  849.  Compare  Logan 
equity,  or  other  proper  proceeding  v.  Postal  Teleg.  &  C.  Co.,  157  Fed. 
for    redress."      This    case    seems    to  570. 

166 


Jurisdiction. 


§89 


federal  court  is  not  prohibited  by  this  section  just  referred  to  from 
issuing  and  has  jurisdiction  to  issue  an  injunction  to  restrain  the 
prosecution  in  a  State  court  of  a  multiplicity  of  threatened  suits 
which  have  not  been  actually  begun.83  A  Federal  court  also  has 
power  in  a  proper  case  to  grant  injunctive  relief  against  a  judg- 
ment obtained  in  a  State  court  by  means  of  fraud.84 


83.  Texas  etc.  R.  Co.  v.  Kute- 
man,  54  Fed.  547,  where  the  court 
said :  "  It  is  not  clear  that  the  bill 
in  this  case  seeks  to  stay  or  enjoin 
any  pending  proceedings  in  State 
courts,  though  the  language  of  the 
prayer  that  the  defendant  be  enjoined 
'  from  instituting  or  prosecuting  such 
action  pending  this  cause '  is  suscep- 
tible of  that  construction.  Mani- 
festly the  chief  purpose  was  to  pre- 
vent the  further  institution  of  the 
many  threatened  suits,  and,  if  the 
plaintiff  sought  relief  as  to  suits  al- 
ready brought  as  well  as  to  suits 
threatened,  the  two  purposes  and 
prayers  are  not  so  united  or  depend- 
ent that  they  must  stand  or  fall  to- 
gether. In  Fisk  v.  Railway  Co.,  10 
Blatchf.  520,  Judge  Blatchford  says: 
1  The  provision  of  section  5  of  the 
Act  of  March  2,  1793,  that  a  writ  of 
injunction  shall  not  be  granted  to 
stay  proceedings  in  any  court  of  a 
State,  has  never  been  held  to  have 
and  cannot  properly  be  construed  to 
have  any  application  except  to  pro- 
ceedings commenced  in  a  State  court 
before  the  proceedings  are  com- 
menced in  the  federal  court;  otherwise 
after  suit  brought  in  a  federal  court,  a 
party  defendant  could,  by  resorting  to 
a  suit  in  a  State  court,  defeat  in  many 
ways  the  effective  jurisdiction  and 
action  of  the  federal  court  after  it 
had  obtained  full  jurisdiction  of  per- 
Bon  and  subject  matter.  Moreover 
the  provision  of  the  Act  of  1793  (now 


section  720,  Rev.  St.)  must  be  con- 
strued in  connection  with  the  pro- 
vision of  section  14  of  the  Act  of 
Sept.  24,  1789,  that  the  federal  courts 
shall  have  power  to  issue  all  writs 
which  may  be  necessary  for  the  ex- 
ercise of  their  respective  jurisdic- 
tions. 1  U.  S.  St.  at  Large,  pp.  81, 
82.'  Section  716.  This  is  cited  with 
approval  by  Judge  Field  in  Sharon 
v.  Terry,  36  Fed.  365.  It  is  in  har- 
mony with  French  v.  Hay,  22  Wall. 
250,  22  L.  Ed.  854,  and  Dietzsch 
v.  Huidekoper,  103  U.  S.  494,  26  L. 
Ed.  497,  and  appears  to  be  sub- 
stantially conceded  by  the  terms  of 
appellee's  first  proposition.  This  be- 
ing so,  as  to  all  suits  threatened, 
no  proceeding  having  been  begun  as 
to  them  in  any  court  prior  to  the 
filing  of  appellant's  bill,  the  exhibit- 
ing the  bill  in  the  Circuit  Court,  if 
jurisdiction  otherwise  is  shown,  gives 
that  court  '  a  first-acquired  federal 
jurisdiction,'  to  which  section  720 
cannot  reasonably  be  applied." 

84.  Young  v.  Sigler,  48  Fed.  182, 
Shiras,  J. :  "  When  the  proceeding 
is  merely  the  equivalent  of  a  motion 
for  a  new  trial  or  for  a  review  of 
alleged  errors  committed  on  the  trial, 
or  for  relief  against  some  informal- 
ity or  irregularity  in  the  proceedings 
before  the  State  court,  then  it  is  set- 
led  the  application  cannot  be  made  to 
the  federal  court;  but  when  the  pro- 
ceeding is  to  obtain  relief  by  setting 
aside   a   judgment  for   fraud   in  the 


167 


>§  90,  91 


J   UKISDICTION. 


§  90.  Federal    jurisdiction    to    enjoin    national    banks — The 

United  States  Circuit  Courts  have  power  to  enjoin  the  national 
banks  in  a  proper  case  by  virtue  of  the  powers  inherent  in  the 
original  jurisdiction  in  equity  conferred  upon  those  courts  by 
Bcction  629  of  the  Kevised  Statutes  of  the  United  States,  this 
power  not  having  been  curtailed  by  section  5242  of  the  same 
statute.85 


§  91.  Jurisdiction  of  patent  infringements — Under  section 
4921  of  the  Revised  Statutes  of  the  United  States  conferring  power 
to  grant  injunctions  "  to  prevent  the  violation  of  any  right  secured 
by  patent  "  the  federal  courts  have  exclusive  jurisdiction  of  injunc- 


obtaining  thereof  then  the  federal 
court  may  take  jurisdiction  if  the 
citizenship  of  the  litigants  is  diverse 
and  the  amount  involved  is  sufficient. 
Barrow  v.  Hunton,  99  U.  S.  80,  25 
L.  Ed.  407;  Johnson  v.  Waters,  111 
U.  S.  640,  4  S.  Ct.  619,  28  L.  Ed. 
647.  In  this  case  the  complainant 
is  a  citizen  of  Colorado,  the  defend- 
ant of  Iowa;  the  amount  at  issue  ex- 
ceeds $2,000,  and  the  proceeding  is  in 
equity  to  set  aside  tne  judgment  for 
fraud,  and  hence  the  court  has  jur- 
isdiction of  the  cause."  See,  also, 
Insurance  Co.  v.  Hodgson,  7  Cranch, 
332,  3  L.  Ed.  362. 

85.  Hower  v.  Weiss  Malting  Co., 
55  Fed.  356,  per  Lacombe,  C.  J.: 
"On  behalf  of  the  defendant,  the 
First  National  Bank  of  New  York, 
it  is  also  insisted  that  under  section 
5242  of  the  U.  S.  Revised  Statutes 
there  was  no  power  in  the  State  court 
to  issue  this  injunction  nor  in  the 
United  States  Circuit  Court  to  con- 
tinue it.  The  practical  effect  of  Judge 
Benedict's  order  was  to  enjoin  the 
defendants  pending  the  litigation,  and 
if  that  court  had  the  power  to  issue 
an     injunction    against    a     national 


bank,  such  order  should  be  sustained 
irrespective  of  the  question  whether 
the  State  court  which  originally  en- 
joined the  defendant  bank,  had  or  had 
not  power  to  make  such  an  order. 
The  prohibition  upon  which  the  de- 
fendant bank  relies  is  found  at  the 
close  of  section  5242,  U.  S.  Revised 
Statutes,  in  the  following  language: 
'  No  attachment,  injunction  or  exe- 
cution shall  be  issued  against  such 
association  (a  national  bank)  or  its 
property  before  tinal  judgment  in  any 
suit,  action  or  proceeding  in  any 
State,  county  or  municipal  court.' 
This  clause  contains  no  direct  re- 
striction upon  the  power  of  cir- 
cuit courts  of  the  United  States. 
It  was  held  in  Pacific  National 
Bank  v.  Mixter,  124  U.  S.  721, 
8  S.  Ct.  718,  31  L.  Ed.  567, 
that,  under  this  provision,  a  Circuit 
Court  was  not  authorized  to  issue 
attachments  on  mesne  process  against 
a  national  bank.  That  conclusion, 
however,  was  reached  because  the 
only  grant  of  such  power  to  the  Cir- 
cuit Court  was  found  in  section  915, 
U.  S.  Revised  Statutes,  which  pro- 
vides that :    '  In  common  law  causes 


168 


Jurisdiction. 


§91 


tions  against  patent  infringements,  and  a  bill  will  lie  in  a  federal 
circuit  court  between  residents  of  the  same  State  to  prevent  an 
anticipated  infringement.86  But  the  above  statutory  provision  does 
not  confer  jurisdiction  to  issue  an  injunction  in  favor  of  one  who 
has  failed  to  secure  a  patent.87  And  section  4915  of  the  federal 
Revised  Statutes,  which  gives  an  unsuccessful  applicant  for  a 
patent  the  right  to  apply  to  a  court  of  equity,  and  which  provides 
that  an  adjudication  by  the  court  in  the  applicant's  favor  shall 
authorize  the  commissioner  to  issue  such  patent,  confers  on  the 
court  no  jurisdiction  to  enjoin  the  commissioner  from  issuing 
letters  patent  in  favor  of  one  whom  he  has  decided  to  be  entitled  to 
them.88 


in  the  Circuit  and  District  Courts 
the  plaintiff  shall  be  entitled  to  sim- 
ilar remedies  by  attachment  or  other 
process,  against  the  property  of  the 
defendant,  which  are  now  provided  by 
the  laws  of  the  State  in  which  such 
court  is  held  for  the  courts  thereof.' 
Inasmuch  as  the  prohibition  of  sec- 
tion 5242  left  the  State  courts  with- 
out power  to  grant  attachments  on 
mesne  process  against  national  banks, 
no  such  power  was  conferred  on  the 
Circuit  Court  by  section  915.  The 
power  to  issue  an  injunction,  how- 
ever, is  inherent  in  the  original  jur- 
isdiction in  equity  which  is  conferred 
upon  the  Circuit  Courts  by  section 
629  of  the  U.  S.  Revised  Statutes, 
and  its  amendments,  and  is  not  cur- 
tailed by  the  provisions  of  the  sec- 
tion upon  which  the  appellant  bank 
relies." 

86.  Sherman  v.  Nutt,  35  Fed.  149. 
A  court  of  equity  has  jurisdiction  to 
enjoin  an  attempted  intimidation  by 
one  issuing  circulars  threatening  to 
bring  suits  for  infringement  against 
persons  dealing  in  a  competitor's  pat- 
ent article,  the  bill  charging  and  the 
proofs  showing  that  the  charges  of 
infringement  were  not  made  in  good 


faith,  but  with  malicious  intent  to 
injure  complainant  s  business.  Emack 
v.  Kane:  34  Fed.  46.  But  there  is  no 
jurisdiction  in  a  court  of  equity  to 
enjoin  a  libel  on  the  rights  or  title 
of  an  owner  of  letters  patent.  Bal- 
timore Car-Wheei  Co.  v.  Bemis,  21 
Fed.  47. 

87.  Illingworth  v.  Atha,  42  Fed. 
141.  In  this  case  it  was  also  held 
as  a  matter  of  practice  that  a  com- 
plainant who  alleges  that  defendant 
induced  the  commissioner  of  patents 
to  decide  in  his  favor,  as  to  the  pri- 
ority of  an  invention,  by  means  of 
false  testimony  and  misleading  state- 
ments, but  who  nowhere  particular- 
izes the  falsehood  or  perjury,  and 
who  introduces  practically  the  same 
evidence  on  the  hearing  of  a  motion 
to  restrain  defendant  from  receiving 
letters  patent  that  had  already  been 
considered  by  the  commissioner,  is 
not  entitled  to  a  preliminary  injunc- 
tion. 

88.  Illingworth  v.  Atha,  42  Fed. 
141.  In  this  case  it  was  also  held  that 
under  the  Act  of  Congress  of  1875  as 
amended  in  1887,  providing  that  no 
civil  suit  shall  be  brought  in  the  Fed- 
eral   courts    against   any    person    by 


169 


§§  92,  93  Jurisdiction. 

§  92.  Exclusive  federal  jurisdiction  of  equitable  maritime 
cases. — Under  the  United  States  constitution  extending  the  power 
of  the  federal  courts  to  "  all  cases  of  admiralty  and  maritime 
jurisdiction/'  and  section  711  of  the  Revised  Statutes  of  the 
United  States,  giving  to  federal  courts  exclusive  jurisdiction  of 
all  "  civil  causes  of  admiralty  and  maritime  jurisdiction ;  saving 
to  suitors  in  all  cases  the  right  of  a  common  law  remedy,  when 
the  common  law  is  competent  to  give  it,"  the  courts  of  the  States 
Lave  no  jurisdiction  of  an  injunction  or  other  equitable  action  to 
enforce  a  maritime  lien,  but  the  federal  courts  have  exclusive 
jurisdiction  of  such  equitable  actions.89 

§  93.  Ancillary  jurisdiction  of  the  federal  courts. — It  has  been 
decided  by  the  Supreme  Court  of  the  United  States  that  when  a 
bill  is  filed  in  a  Circuit  Court  of  the  United  States,  to  enjoin  a 
judgment  in  that  court,  it  is  not  to  be  considered  an  original  bill, 
but  as  a  continuation  of  the  action  at  law.90  The  statute  which 
forbids  a  federal  court  to  grant  an  injunction  to  stay  proceedings 
in  a  State  court,  does  not  prevent  its  enjoining  a  suit  on  a  replevin 
bond,  after  the  replevin  suit  has  been  removed  to  the  federal  courts, 
and  in  such  a  case  the  bill  for  injunction  is  merely  ancillary  to  the 
replevin  case,  of  which  the  State  court  had  ceased  to  have  juris- 
diction.91    And  a  State  railroad  commission  may  be  enjoined  by 

any  original  process  or  proceeding  in  commissioner.      Butterworth   v.    Hill, 

any  other  district,  than  that  whereof  114  U.   S.   128,  5   S.  Ct.   796,  29   L. 

he  is  an  inhabitant,  the  Circuit  Court  Ed.  119." 

of  New  Jersey  has  no  jurisdiction  89.  Brown  v.  Gray,  70  Hun  (N. 
over  the  patent  commissioner  whose  Y.),  261,  24  N.  Y.  Supp.  61.  See, 
official  residence  is  the  District  of  555,  18  L.  Ed.  451;  The  Belfast,  7 
Columbia.  Per  Green,  J.:  "A  Fed-  Wall.  625,  19  L.  Ed.  266;  Pelham 
eral  court  acquires  jurisdiction  only  Town  v.  Schooner,  3  Fed.  457. 
by  a  service  of  process  or  by  a  vol-  90.  Minnesota  Co.  v.  St.  Paul  Co., 
untary  appearance.  Herndon  v.  Ridg-  2  Wall.  633,  19  L.  Ed.  886.  See  Con- 
way, 17  How.  424.  Under  exactly  well  v.  Valley  Canal  Co.,  4  Biss.  200. 
similar  circumstances  in  a  suit  91.  Kern  v.  Huidekoper,  103  U.  S. 
brought  under  this  section,  4915,  the  494,  26  L.  Ed.  354. 
Supreme  Court  has  decided  that  the  See  §  88  herein  as  to  further  con- 
Circuit  Court  for  the  district  of  sideration  of  the  statute,  Rev.  St.  § 
Vermont  had  no  jurisdiction  over  the  720  (U.  S.  Comp.  Stat.  1901,  p.  581). 

170 


JUEISDICTION.  §  94 

a  federal  court  from  putting  in  force  an  order  which  would  operate 
to  cause  damages  for  which  the  complainant  has  no  adequate 
remedy  at  law  where  jurisdiction  is  conferred  upon  such  court  by 
reason  of  the  diverse  citizenship  of  the  parties  and  the  federal 
questions  which  are  involved.92 

§  94.  Jurisdiction  according  to  value  in  dispute. — In  deter- 
mining the  jurisdiction  on  appeal  from  a  decree  on  a  bill  for  an 
injunction,  the  matter  in  dispute  is  the  value  of  the  defendant's 
right,  which  he  is  restrained  from  exercising,  rather  than  the 
amount  of  damage  done  to  plaintiff  by  the  act  which  he  seeks  to 
restrain.  Thus,  when  a  bill  was  brought  to  restrain  the  main- 
tenance of  an  awning,  the  matter  in  dispute  was  held  to  be  the 
value  of  the  right  to  maintain  the  awning,  not  the  amount  of 
damage  done  by  it  to  plaintiff.93  And  where  the  Washington 
Market  Company  was  enjoined  by  its  lessees  from  selling  the 
stalls  in  the  market  to  the  highest  bidder,  the  value  of  the  right  so 
to  sell,  which  the  company  claimed  and  the  court  below  denied, 
was  held  to  determine  the  appellate  jurisdiction  of  the  Supreme 
Court  of  the  United  States.94  So  in  determining  the  question  of 
jurisdiction  the  amount  of  the  right  which  it  is  sought  to  protect 
and  not  the  damages  which  may  be  recovered  for  the  invasion  of 

92.  Railroad  Commission  v.  Rosen-  $2,000  was  supported  by  abundant 
baum  Grain  Co.,  130  Fed.  110.  evidence;   and  if  the   matter  in   dis- 

93.  Whitman  v.  Hubbell,  30  Fed.  pute  were  simply  the  threatened  in- 
81;  Railroad  Company  v.  Ward,  2  jury  to  the  plaintiffs,  this  finding  of 
Black,  485,  19  L.  Ed.  311.  In  fact  might  be  accepted  as  in  itself 
Rainey  v.  Herbert,  55  Fed.  443,  conclusive;  but,  if  this  were  other- 
Dallas,  J.:  "This  is  an  appeal  wise,  the  want  of  a  sufficient  amount 
from  a  decree  for  an  injunction  of  damage  having  been  alleged  and 
restraining  the  erection  of  certain  proved  to  give  the  federal  courts 
coke  ovens.  The  jurisdiction  of  jurisdiction,  would  not  defeat  the 
the  Circuit  Court  was  dependent  upon  remedy,  as  the  prohibition  of  the  con- 
the  amount  involved  in  the  contro-  templated  erection  of  ovens  was  the 
versy.  There  was  some  conflict  of  matter  of  controversy,  and  the  value 
testimony  as  to  the  amount  of  dam-  of  that  object  (admittedly  in  excess 
age  which  would  result  to  the  com-  of  the  jurisdictional  amount)  must 
plainanta  from   the  operation   of  the  govern." 

ovens,  but  the  court  below  found  that  94.  Market  Company  v.  Hoffman, 

the    averment   that  it   would   exceed       101  U.  S.  112. 

171 


§§  95,  96  Jueisdiction. 

that  right  is  decisive  thereof.95  And  where  the  object  of  the  in- 
junction is  to  restrain  the  use  of  property,  by  a  party  other  than 
the  owner,  the  right  to  use  the  property  is  the  matter  in  dispute, 
and  the  value  of  such  right  must  determine  the  question  of  juris- 
diction.96 Jurisdiction  of  suits  to  restrain  the  infringement  of 
trade-marks,  is  not  given  to  the  United  States  Circuit  Courts, 
except  where  the  matter  in  dispute  exceeds  a  certain  sum  or  value, 
but  this  amount  in  dispute  does  not  depend  on  the  profits  sought 
to  be  recovered.97 

§  95.  Injunctive  jurisdiction  of  Territorial  courts. — Territorial 
courts,  from  which  writs  of  error  and  appeals  to  the  Supreme  Court 
of  the  United  States  are  allowed  and  taken  "  in  the  same  manner 
and  under  the  same  regulations  as  from  the  Circuit  Courts  of  the 
United  States,"  can  grant  an  injunction  in  favor  of  plaintiff, 
pending  an  appeal  taken  by  him  from  such  court  to  the  Supreme 
Court  of  the  United  States.98  Under  section  23  of  the  enabling 
act,  admitting  Washington  as  a  State  (25  U.  S.  Stats.  676), 
which  provides  that  the  federal  courts  thereby  created  shall  be  the 
successors  of  the  territorial  courts  as  to  certain  cases  "  pending  " 
in  the  latter,  the  circuit  court  for  that  district  may  punish  as  a 
contempt  the  violation  of  an  injunction,  granted  by  final  decree  of 
the  territorial  court,  against  interference  with  fishery  privileges 
guaranteed  to  the  Indians  by  treaty  with  the  United  States.99  And 
any  court  succeeding  to  a  territorial  court  may  proceed  with  a 
judgment  obtained  therein,  as  if  the  case  had  been  commenced  and 
proceeded  to  judgment  in  such  succeeding  court.1 

§  96.  Jurisdiction  of  perpetual  injunctions The  jurisdiction 

95.  Board  of  Trade  v.  Cella  Com-      Co.  v.  Eureka  Hill  Min.  Co.  5  Utah, 
mission  Co.,   145  Fed.  28;   Louisville       182,  12  Pae.  660. 

&  U.  R.  Co.  v.  Bitterman.  144  Fed.  99.  United    States    v.    Taylor,   44 

34.  Fed.  2. 

96.  Oleson   v.     Northern     Pac.   R.  1.  United  States  v.  Taylor,  44  Fed. 
Co.,  44   Fed.    1.  2.     See,  also,  Wegman  v.  Childs,  41 

97.  Symonds    v.    Greene,    28    Fed.  N.  Y.  159;  Sherman  v.  Felt,  2  N.  Y. 
834.  186. 

98.  Bullion  Beck  &  Champion  Min. 

172 


Jurisdiction.  §  96 

of  perpetual  injunctions  is  vested,  it  is  obvious,  in  the  court  which 
tries  the  cause  at  the  final  hearing,2  and  renders  judgment  therein, 
for  a  perpetual  injunction  is  either  the  whole  or  a  part  of  the  final 
judgment.3 

2.  Hamilton   v.   Icard,    112   N.    C.  in  Maine,  by  L.   1881,  ch.  68,  §  22, 
589,  17  S.  E.  519.  that  "  perpetual  injunctions  may  be 

3.  Jackson  v.  Bunnell,   113  N.  Y.  granted  by  the  court,  or  any  justice 
216,  220,  21  N.  E.  79.    It  is  enacted  thereof,  making  final  decree." 


173 


§  97  Classification  and  Foem. 


CHAPTER  ni. 

CLASSIFICATION  AND  FORM. 

SECTION     97.  Preventive   and   mandatory. 

97a.  Mandatory  injunctions — Rules  as  to  granting  generally. 

98.  Mandatory    injunctions — Requisites   of. 

99.  Same  subject — In  New  Jersey. 

100.  Same  subject — In  New  York  and  other  States. 

101.  Mandatory  injunctions  more  favored  than  formerly. 

102.  The  effectiveness  of  mandatory  injunctions. 

103.  Relief  by  mandatory   injunction — Illustrations. 

104.  Same   subject — Illustrations  continued. 

105.  Common  and  special  injunctions — Common  abolished. 
105a.  Special   injunctions  further  considered. 

106.  Prerogative    writs   of   injunction. 

107.  Perpetual   and   preliminary   injunctions. 

108.  Perpetual   injunctions  further  considered. 

109.  Interlocutory  or  temporary  injunctions. 
109a.  Same   subject — Object  of. 

109b.  Preliminary  injunctions  further   considered. 

110.  Same  subject. 

110a.  Injunction  by  order  in  New  York. 

111.  Interim  restraining  orders  generally. 

Ilia.  Interim  restraining  orders  in  particular  jurisdictions. 

112.  Invalid  preliminary   injunctions. 

113.  Injunction    against  plaintiff. 

114.  Form  and  contents  of  injunction  order. 

115.  Injunction  order  to  be  specific. 

116.  Settling  and  correcting  form  of  permanent  injunction 

§  97.  Preventive  and  mandatory  defined  and  distinguished. — 
With  reference  to  their  nature,  injunctions  are  divided  into  two 
classes,  preventive  and  mandatory.  They  are  more  generally  pre- 
ventive than  mandatory;  they  seek  to  prevent  a  meditated  wrong 
more  often  than  to  redress  an  injury  already  done.1  The  injunc- 
tion decree  is  sometimes  both  preventive  and  mandatory.  Thus 
defendants  who  had  begun  to  erect  a  bridge  over  a  court  were  re- 

1.  Story,  Eq.  Jur.,   §  862. 

174 


Classification  and  Form.  §  97a 

strained  from  continuance  and  ordered  to  remove  the  portion 
already  built.2  A  mandatory  injunction  is  one  which  commands 
the  doing  of  some  positive  act  by  the  defendant,3  which  will  some- 
times change  the  status  of  the  parties;  while  a  preventive  injunc- 
tion restrains  the  doing  of  the  thing  and  preserves  the  status  until 
the  rights  of  the  parties  are  determined.4  It  would,  however,  be 
misleading  to  say  that  it  is  distinctive  of  a  mandatory  injunction 
to  change  the  status  of  parties,  for  very  often  its  most  important  if 
not  entire  effect  is  to  restore  the  plaintiff  to  the  original  situation, 
as  will  appear  in  the  following  sections.5 

§  97a.  Mandatory  injunctions ;  rules  as  to  granting  generally. 
— An  applicant  for  a  preliminary  mandatory  injunction,  quite  as 
much  as  others,  is  required,  however,  to  show  a  clear  right,6  and  a 
case  of  necessity  or  extreme  hardship,7  and  it  is  declared  that  the 
court  will  seldom  grant  a  mandatory  injunction  pendente  lite 
unless  the  plaintiff's  right  is  so  clear  that  the  denial  of  the  right 
must  be  either  captious  or  unconscionable.8  Therefore  mandatory 
injunctions  which  in  effect  anticipate  the  judgment  or  give  some 
of  the  relief  which  it  is  sought  to  obtain  by  the  decree  of  the  court 
should  be  granted  with  caution  and  only  when  the  necessity  is 
great.  Applications  therefor  call  for  great  care  upon  the  part  of 
the  court  to  which  they  are  made,  but  not  only  is  the  power  to 
grant  them  undoubted,  but  the  remedial  and  restraining  power  of  a 

2.  Salisbury  v.  Andrews,  128  Mass.  Div.  (N.  Y.)  380,  44  N.  Y.  Supp.  15; 
336.  See  Knoxville  v.  Africa,  77  Fed.  501, 

3.  Bailey  v.  Schnitzius,  45  N.  J.  47  U.  S.  App.  74,  246,  23  C.  C.  A. 
Eq.  178,  183,  16  Atl.  680;  Rogers  Lo-  252. 

comotive   &   Machine   Works   v.   Erie  7.  Bailey  v.   Schnitzius,   45   N.   J. 

Ry.  Co.,  20  N.  J.  Eq.  379,  387.  Eq.    178,    16   Atl.   680;    Delaware,   L. 

4.  Beach,  Modern  Eq.  Jur.,  §  639;  &  W.  R.  Co.  v.  Central  Stock  Yard 
Chicago,  etc.,  R.  Co.  v.  Kansas  City,  Co..  43  N.  J.  Eq.  605,  12  Atl.  374, 
etc.,  R.  Co.,  38  Fed.  60.  13    Atl.    615.      See    Tanner   v.    Wall- 

5.  See  Lynch  v.  Union  Institute  for  brunn,  77  Mo.  App.  262;  Post  v. 
Saving,  158  Mass.  394,  33  N.  E.  603.  Southern  R.   Co.,    103  Tenn.   184,  52 

6.  Chicago,  etc.   R.   Co.  v.  Kansas  S.  W.  301,  55  L.  R.  A.  481. 

City,  etc.,  R.  Co.,  38  Fed.  60;  Hagen  8.  West  Side  Elec.  Co.  v.   Consol. 

v.  Beth,   118  Cal.  330,  50  Pac.  425;       Subway  Co.,   87  App.   Div.    (N.    Y.) 
Jameson  v.  Hartford  F.  I.  Co.,,  14  App.       550,  84  N.  Y.  Supp.  1052. 

175 


§9Ta 


Classification  and  Form. 


court  of  equity  would  be  greatly  impaired  if  such  was  not  the 
rule.9  The  more  general  rule  is  that  a  mandatory  injunction  will 
not  be  granted  until  final  hearing ;  after  there  has  been  a  trial  of 
the  action,10  and  not  then  unless  necessary  to  the  complete  execution 
of  the  decree  of  the  court.11  But  while  the  jurisdiction  of  a  court 
of  equity  by  way  of  mandatory  injunction  is  rarely  exercised,  it  is, 
nevertheless,  too  well  established  to  admit  of  doubt.12     Such  an 


9.  People  v.  McKane,  78  Hun  (N. 
Y.),  154,  165,  28  N.  Y.  Supp.  981. 
Per  Brown,  J. 

10.  United  States. — McCauley  v. 
Kellogg,  Fed.  Cas.  No.  8688,  2  Woods, 
13. 

California. — Hagen  v.  Beth,  118 
Cal.   330,   50  Pac.  425. 

Georgia. — Thomas  v.  Hawkins,  20 
Ga.  126. 

Louisiana. — See  Black  v.  Good  In- 
tent Towboat  Co.,  31  La.  Ann.  497. 

Maryland. — Washington  University 
v.  Green,  1  Md.  Ch.  97. 

New  Jersey. — Delaware,  L.  &  W. 
R.  Co.  v.  Central  Stock  Yard  Co.,  43 
N.  J.  Eq.  71,  10  Atl.  490;  Rogers  Lo- 
comotive &  M.  Works  v.  Erie  R.  Co., 
20  N.  J.  Eq.  379. 

~New  York. — Zipp  v.  Barker,  6  App. 
Div.  609,  40  N.  Y.  Supp.  325. 

Pennsylvania. — Brittain  v.  Ely,  4 
Wkly.  Notes  Cas.  412. 

A  mandatory  injunction  is 
rarely  granted  before  final  hear- 
ing or  before  the  parties  have  had 
a  full  opportunity  to  present  all  the 
facts  in  such  manner  as  will  enable 
the  court  to  see  and  judge  what  the 
truth  may  be.  It  is  always  granted 
cautiously  and  is  strictly  confined  to 
cases  where  the  remedy  at  law  is 
plainly  inadequate.  A  preliminary 
mandatory  injunction  will  be  ordered 
only  in  case  of  extreme  necessity. 
Bailey  v.  Schnitzius,  45  N.  J.  Eq. 
178,  184,   16  Atl.  680.     Per  Scudder, 


J.  See,  also,  Lord  v.  Carbon  Iron 
Mfg.  Co.,  38  N.  J.  Eq.  452;  Long 
wood  Valley  R.  Co.  v.  Baker,  27  N. 
J.  Eq.   166,  171. 

11.  Delaware,  L.  &  W.  R.  Co.  v. 
Central  Stock-  Yard  Co..  43  N.  J.  Eq. 
71,  10  Atl.  490,  where  the  court  said: 
"There  are  a  few  exceptions  to  this 
rule.  Obstructions  to  easements  and 
rights  of  like  nature  may  be  re- 
moved by  mandatory  injunction 
granted  before  final  hearing,  but 
even  in  cases  of  this  class  the  power 
is  exercised  with  great  caution  and 
only  in  cases  of  extreme  necessity. 
This  subject  was  exhaustively  con- 
sidered by  Chancellor  Zabriskie  in 
Rogers  Locomotive  Works  v.  Erie 
R.  Co.,  5  C.  L.  Gr.  379,  and  the 
rules  laid  down  by  him  in  that  case 
have,  I  believe,  always  since  been  con- 
sidered the  establisned  principles  of 
this  court.  The  defendants  in  that 
case  had  refused  to  carry  merchan- 
dise over  their  road  lor  the  plain- 
tiffs for  the  legal  rate  of  freight,  and 
the  plaintiffs  then  filed  a  bill  asking 
for  a  mandatory  injunction  to  com- 
pel defendants  to  perform  their  legal 
duty.  The  writ  after  argument  was 
refused  distinctly  on  the  ground  that 
it  was  not  within  the  power  of  the 
court  to  grant  it  before  final  hear- 
ing." 

12.  Sproat  v.  Durland,  2  Okla.  24. 
43,   per  the   court. 

United    States    Circuit    Court 


176 


Classification  ajtd  Form.  §  98 

injunction  may  issue  at  the  beginning  of  a  suit  when  necessary  for 
the  protection  of  easements  and  other  similar  rights.13  And  a  final 
mandatory  injunction  will  sometimes  be  granted  in  cases  in  which 
a  preliminary  preventive  injunction  would  properly  have  been 
refused,  for  a  trial  gives  the  certainty  of  fact  to  what  was  before 
only  a  probability  or  matter  of  opinion.14 

§  98.  Mandatory  injunctions;  requisites  of A  mandatory  in- 
junction may  be  in  the  alternative  form,  but  it  must  command 
something  to  be  done,  and  with  such  positiveness  as  not  to  leave 
compliance  with  the  mandate  wholly  at  the  pleasure  of  the  person 
enjoined.15  An  injunction  may  be  mandatory  in  effect  though 
preventive  in  form.  Thus  where  a  defendant  carrier  was  asked  to 
be  enjoined  from  refusing  to  receive  live  stock,  the  injunction  was 
construed  to  mean  that  the  defendant  be  compelled  to  receive  such 
stock  from  plaintiff.16  And  an  injunction  enjoining  "  from  refus- 
ing to  pay  "  obviously  in  effect  requires  payment,  and  is  therefore 
mandatory.  Such  a  form  of  injunction  is  authorized  in  Maryland 
by  the  Statute  of  1886.17     So,  too,  in  England  in  earlier  times,  the 

has   power  to  issue  a  mandatory  in-  proper,   and  was  clearly  not  manda- 

junction.     Chattanooga  T.  R.  Co.  v.  tory." 

Felton,  69  Fed.  273.  16.  Delaware,   L   &  W.   R.   Co.   v. 

13.  Hodge  v.  Giese.  43  N.  J.  Eq.  Central  Stock  Yard  Co.,  43  N.  J.  Eq. 
342,   11  Atl.  484.  17,    75,    10   Atl.   490.     See,   also,  At- 

14.  Nicholson  v.  Getchell,  96  Cal.  torney  General  v.  Railroad  Com- 
394,  31   Pac.  265.  panies    35  Wis.  425,  520. 

15.  Lawrence  v.  Ingersoll,  88  17.  Board  of  County  School  Com- 
Tenn,  52,  12  S.  W.  422.  The  court:  missioners  v.  Board  of  County  School 
"It  is  sufficient  to  say  that  the  in-  Comrs.,  77  Md.  283,  26  Atl.  115. 
junction  is  not  mandatory.  The  in-  where  the  court  said:  "The  injunc- 
junction  prohibited  the  meeting  and  tion  decreed  by  the  Circuit  Court  is 
acting  of  defendants  without  giving  peculiar  in  its  form.  It  enjoins  the 
complainant  notice,  and  permitting  county  commissioners  from  refusing 
him  to  act  with  them.  It  did  not  com-  to  pay  the  treasurer  of  the  old  board 
mand  his  admission  except  the  re-  money  which  was  payable  to  the 
spondents  proceeded  to  act.  It  pro-  boaxd  of  school  commissioners  ol 
hibited  their  acting,  but  authorized  Washington  county.  This,  of  course, 
them  to  avoid  this  prohibition  on  is  equivalent  to  an  affirmative  order 
compliance  with  conditions  which  that  they  shall  make  such  payment, 
they  could  accept  or  not  as  they  saw  In  Carlisle  v.  Stevenson,   3  Md.   Ch. 

177 
12 


§98 


Classification  and  Form. 


court  of  chancery  would  not  ordinarily  on  motion  issue  a  manda- 
tory injunction  commanding  an  act  to  bo  done,18  but  in  some  cases 


503,  Chancellor  Johnson  said  that 
this  form  of  injunction  originated 
with  Lane  v.  Newdigate,  10  Ves.  193, 
and  that  the  principle  of  that  case 
scorned  never  to  have  been  repudiated. 
This  practice  is  entirely  unobjection- 
able, but  it  does  not  seem  to  have 
been  frequently  followed  in  this 
State.  The  injunction  decreed  was, 
however,  not  within  the  special 
prayer  for  this  writ  contained  in  the 
bill  of  complaint.  But  tlie  Act  of 
1886,  ch.  441  (Code,  art.  10  §  177), 
provided  that  '  the  court  may  at  any 
stage  of  a  cause  or  matter,  on  the 
application  of  any  party  thereto,  or 
party  in  interest,  by  motion  or  peti- 
tion, or  of  its  own  motion,  order  the 
issue  of  a  mandate  (affirmative  In- 
junction), or  injunction  directing  and 
commanding  any  party  to  such  cause 
or  matter,  or  any  party  properly 
brought  before  it  under  the  existing 
practice,  to  do,  or  abstain  from  doing, 
any  act  or  acts,  wnether  conjointly 
or  in  the  alternative,  whether  in  the 
nature  of  special  performance  or 
otherwise  named  in  such  mandate  or 
injunction  and  may  make  such  terms 
and  conditions  (as  to  security,  etc.), 
as  to  it  may  seem  fit,  preliminary  to 
the  granting  of  such  mandate  or  in- 
junction.' We  think  that  the  injunc- 
tion was  authorized  by  this  legisla- 
tion." 

18.  This  is  the  conclusion  reached 
by  the  chancellor  in  Rogers  Locomo- 
tive Works  v.  Erie  R.  Co.,  20  N.  J. 
Eq.  379,  388,  on  a  review  of  the  Eng- 
lish authorities :  "  In  Drewry  on  In- 
junctions, p.  260,  it  is  laid  down:  It 
seems  settled  that  equity  has  not  ju- 
risdiction to  compel,  on  motion,  the 
performance  of   any   substantial   act. 


In  3  Dan.  Chan.  Prac.  1767,  it  is  said: 
It  is  to  be  observed  that  the  court 
will  not,  by  injunction  granted  on  in- 
terlocutory application,  direct  the  de- 
fendant to  perform  an  act,  but  might, 
upon  motion,  order  the  defendant  to 
pull  down  a  building  which  was 
clearly  a  nuisance  to  the  plaintiff. 
Lord  Hardwicke,  in  an  anonymous 
cause  in  1  Ves.  Jun.  140,  restrained 
the  further  digging  of  a  ditch,  but  re- 
fused, on  motion  before  answer,  to  or- 
der the  part  dug  to  be  filled  up.  In 
Hooper  v.  Broderick,  11  Sim.  47,  a 
preliminary  injunction  to  restrain  a 
tenant  from  discontinuing  to  keep  an 
inn  was  dissolved  on  the  ground  that 
it  was  mandatory — the  same  as  if  he 
was  commanded  to  keep  an  inn.  In 
Blakemore  v.  Glamorganshire,  etc., 
Co.,  1  Myl.  &  K.  154,  Lord  Brougham, 
after  a  review  of  the  cases  (p.  183) 
and  quoting  with  approbation  what 
Lord  Hardwicke  said  in  Ryder  v.  Ben- 
tham,  that  '  he  had  never  known  an 
order  to  pull  down  on  motion,  and  but 
rarely  by  decree,'  refused  so  much  of 
the  injunction  prayed  for  as  directed 
the  defendant  Powell  to  fill  up  the 
collateral  pond.  The  cases  of  East 
India  Co.  v.  Vincent,  2  Atk.  83 ;  Spen- 
cer v.  London,  etc.,  R.  Co.,  8  Sim. 
193,  and  of  Durell  v.  Pritchard,  L. 
R.  1  Ch.  App.  244,  are  to  the  same  ef- 
fect. And  in  the  last  case  Lord 
Romilly  held  that  the  court  upon 
final  hearing,  could  not  issue  a  man- 
datory injunction,  directing  a  wall 
to  be  taken  down,  yet  the  Lords  Jus- 
tices, on  appeal,  held  that  it  had  the 
power  but  that  in  the  case  before 
them  it  should  not  be  exercised,  and 
dismissed  the  appeal." 


178 


Classification  and  Foem. 


98 


introduced  a  mandatory  clause  into  a  restraining  order  requiring 
defendant  to  remove  the  erection  complained  of  on  the  ground  that 
he  effected  the  act  he  was  restrained  from  doing  by  continuing  such 
errction.19     And  in  a  later  case  in  England  it  is  decided  that  a 


19.  To  this  effect  the  chancellor 
studied  the  English  cases  in  the  Rog- 
ers Works  case  before  cited :  "  In 
Robinson  v.  Lord  Byron,  1  Bro.  C.  C. 
588,  which  is  referred  to  as  the  lead- 
ing case  for  mandatory  injunction, 
Lord  Thurlow  ordered  an  injunction 
to  restrain  defendant  from  using  his 
dams  and  other  erections,  so  as  to 
prevent  the  water  from  flowing  to  the 
complainant's  mill  in  such  quantities 
as  it  had  ordinarily  done  before 
April,  1785.  The  effect  of  this  may 
have  been  to  compel  the  removal  of 
the  part  erected  after  1785.  . 
In  Lane  v.  Newdigate,  10  Ves.  102, 
the  object  of  the  injunction  was  to 
compel  the  xestoring  of  a  stop-gate 
which  was  wrongfully  removed.  Lord 
Eldon  would  not  order  it  to  be  re- 
stored but  restrained  the  preventing 
the  use  of  the  water  by  complainant 
by  the  removal  of  a  stop-gate  which 
was  equivalent  to  an  order  to  restore 
it,  and  was  so  intended.  In  Rankin 
v.  Huskisson,  4  Sim.  13,  the  court  re- 
strained the  defendant  from  permit- 
ting an  erection  to  remain;  this  was 
equivalent  to  an  order  to  remove  it. 
But  it  is  like  the  others;  simply  re- 
moving that  by  which  the  defendannt 
continued  the  nuisance  to  be  re- 
strained. In  Mixborough  v.  Bower,  7 
Beav.  127,  Lord  Langdale  ordered  an 
injunction  to  restrain  permitting 
the  communication  complained  of  (by 
which  complainants'  mine  was 
flooded)  to  remain  open.  The  injunc- 
tion was  to  prevent  the  flooding  of 
the  mine  by  restraining  or  removing 


the  means  by  which  the  defendant 
continued  to  do  it.  In  the  North  of 
England  R.  Co.  v.  Clarence  R.  Co.,  1 
Coll.  507,  the  injunction  prayed  for 
was  against  maintaining  a  wall,  and 
after  the  rights  of  the  parties  had 
been  referred  to  and  settled  in  the 
court  of  exchequer,  V.  C.  Bruce  hesi- 
tated to  grant  the  injunction,  though 
he  held,  p.  521,  that  mandatory  in- 
junctions might  be  granted;  yet  he 
referred  the  case  to  Lord  Ch.  Lynd- 
hurst,  who,  it  is  stated,  granted  the 
injunction  in  nearly  the  terms  of  the 
prayer;  but  whether  it  included  this 
mandatory  part  does  not  distinctly 
appear.  The  case  established  the  right 
of  the  complainant  to  build  a  bridge 
over  the  railway  of  the  defendant,  and 
to  rest  the  supports  of  the  scaffolding 
on  the  soil;  and  the  mandatory 
prayer  was  that  defendants  should  re- 
move a  wall  placed  on  their  grounds 
to  hinder  it.  In  Greatrex  v.  Great- 
rex,  1  DeG.  &  S.  692,  the  injunction 
was  against  preventing  the  plaintiffs 
from  having  access  to  the  books  of 
the  firm,  and  against  removing  them 
from  or  keeping  them  at  any  other 
place  than  the  place  of  the  business 
of  the  partnership,  as  the  defendant 
had  removed  the  books;  this  was 
equivalent  to  an  order  to  restore 
them,  but  yet  it  did  not  command 
any  act  to  be  done.  In  Hervey  v. 
Smith,  1  Kay  &  J.  389,  the  injury 
was  covering  with  tiles  the  chimneys 
from  the  butler's  pantry  of  the  com- 
plainant; Lord  Hatherly,  on  the  au- 
thority of  Robinson  v.  Lord  Byron, 


179 


§  09  Classification   ajtd   Form. 

mandatory  injunction,  the  object  of  which  is  to  procure  the  re- 
moval of  buildings  should  not  restrain  the  owners  from  allowing 
them  to  remain  but  should  in  express  terms  direct  their  removal.2* 
Under  the  New  Brunswick  statute  the  court  may  grant  mandatory 
injunctions  as  in  other  cases  but  always  on  notice  to  the  opposite 
party.  But  on  application  for  dissolution  of  an  ex  parte  injunction 
not  mandatory  the  court  may  grant  a  mandatory  injunction  in 
addition  to  the  injunction  so  granted  ex  parte,  or  in  its  stead.21 

§  99.  Same  subject ;  in  New  Jersey. — In  New  Jersey  a  manda- 
tory injunction  will  not  be  ordered  on  a  preliminary  or  interlocu- 
tory motion  but  only  on  final  hearing,  except  in  extreme  cases,  and 
even  then  the  directly  mandatory  form  will  be  avoided  and  the 
same  result  reached  if  possible  by  means  of  a  prohibitory  restrain- 
ing order.  Thus  an  injunction  will  not  be  granted  to  compel  a 
common  carrier  to  transport  goods  at  the  rates  fixed  by  law  but 
will  issue  to  prevent  him  from  entering  into  an  agreement  not  to 
transport  them  at  such  rates.22  And  where  a  minister  was  im- 
properly excluded  from  his  church,  the  trustees  were  not  enjoined 
to  open  the  church  to  him  but  to  refrain  from  continuing  to  keep 
the  church  closed.23  In  a  later  case,  however,  in  this  State  it  is 
said  that  a  mandatory  injunction  to  accomplish  its  purpose  must 
command  or  coerce  the  defendants  to  do  certain  affirmative  acts, 
not  merely  to  remain  inactive  or  refrain  from  doing  an  act.24  A 
mandatory  injunction  will  be  awarded  as  matter  of  course,  when- 
ever it  is  the  necessary  or  more  appropriate  process  for  carrying  the 
decree  of  the  court  into  effect.25 

granted   an   injunction   the  effect   of  21.  N.  B.  Consol.  Stat.,  p.  398. 

which  was  and  was  intended  to  be  to  22.  Rogers  Locomotive,  etc.,  Works 

compel  the  defendant  to  remove  the  v.  Erie  E.  Co.,  20  N.  J.  Eq.  379. 

tiles;    but  he   declined  to   adopt  the  23.  Whitecar  v.  Michenor,  37  N.  J. 

mandatory   form,  but  restrained  the  Eq.  6,  14. 

defendant  from  doing  any  act  to  pre-  24.  Bailey  v.  Schnitzius,  45  N.  J. 

vent  the  smoke  from  arising."  Eq.  178,  184,  16  Atl.  680.    Per  Scud- 

20.    Jackson    v.    Normanby    Brick  der,  J. 

Co.,  86  Law  J.  Ch.  407,  80  Law  T.  N.  25.  Stanford  v.  Lyon,  37  N.  J.  Eq. 

S.  482.  94 

180 


Classification  and  Form.  §  100 

§  100.  Same  subject;  in  New  York  and  other  States In  New 

York  a  mandatory  injunction  may  issue  to  compel  the  delivery  of 
specific  property  by  one  who  wrongfully  detains  it,  if  the  ordinary 
legal  remedies  will  not  suffice.26  Thus  executors  may  maintain  an 
action  in  equity  for  a  mandatory  injunction  to  compel  the  delivery 
to  them  of  an  article  bequeathed  as  a  specific  legacy  to  a  legatee  as 
a  memento  of  the  testator,  and  of  which  they  have  failed  to  obtain 
possession  in  an  action  of  replevin  by  reason  of  defendant's  avoid- 
ance of  the  execution  issued  upon  a  judgment  therein  for  the  re- 
covery of  the  article.27  Under  a  Connecticut  statute  which  pro- 
vided that  an  injunction  may  be  granted  against  the  malicious 
erection  upon  one's  own  land  of  any  structure  intended  to  annoy 
or  injure  any  proprietor  of  adjacent  land;28  a  defendant  who  had 
maliciously  and  stealthily  erected  such  an  injurious  structure  and 
completed  it  before  an  application  could  be  made,  was  ordered  to 
"  discontinue,"  that  is  remove  it,  under  a  penalty  of  $500,  though 
it  was  in  some  degree  useful  to  defendant  as  a  screen  to  his 
premises.29  It  has  been  since  held,  however,  that  the  malicious 
acts  intended  by  the  statute  must,  as  a  general  rule,  go  beyond  the 
petty  hostilities  of  business  rivalry  and  be  determined  by  the 
character,  location,  and  use  of  the  structures  erected,  rather  than 
by  an  inquiry  into  the  actual  motive  in  the  mind  of  the  person 
erecting  it.30  Under  the  Georgia  Code  a  mandatory  injunction  is 
disallowed,31  and  an  order  restraining  a  person  from  doing  a  cer- 

26.   Hammond   v.  Morgan,   101   N.  But  before  the  equitable  relief  can  be 

Y.   179,  187,  4  N.  E.  328,  where  the  granted    the    facts    conferring   equity 

court  said :     "  The  ordinary  remedies  jurisdiction    should    be    alleged    and 

of  a  party  against  one  who  has  con-  must  be  proved." 

verted    and    wrongfully    detains    his  27.   Cain   v.    Cain,   28   Abb.  N.    C. 

chattels  or  choses  in  action  is  by  an  (N.  Y.)    423. 

action  of  trover  or  replevin.     But  in  28.  Gen.  Stat.,  p.  477,  §  4. 

peculiar    cases,    where   from   the   na-  29.   Harbison   v.    White,   46   Conn, 

ture  of  the  case  or  of  the  property  106. 

detained,  neither  of  such  actions  will  30.   Gallagher  v.  Dodge,  48  Conn, 

give  sufficient  relief,  an  equitable  ac-  387. 

tion  may  be  instituted  for  the  specific  31.   Section   3224.      And   this  was 

delivery  of   the   property,   and   judg-  probably    the    case    before    the    Code, 

ment  in   such  an  action  may  be  en-  Thomas  v.  Hawkins,  20  Ga.  126. 
forced   by   punishment  for  contempt. 

181 


§  101  Classification  and  Form. 

tain  act,  which  indirectly  accomplishes  the  result  of  a  mandatory 
injunction,  is  not  authorized.32  The  Compiled  Utah  Laws  of  1888, 
§  3300,  authorized  mandatory  as  well  as  preventive  injunctions.23 
The  rule  in  Louisiana  since  1844  has  been  that  a  preliminary  man- 
datory injunction  might  issue  on  motion  to  remove  an  obstacle 
which  prevented  a  party  from  getting  out  of  or  into  his  own  house.34 
So  in  1866  the  city  of  New  Orleans  was  compelled  by  injunction  to 
close  up  certain  openings  made  by  it  in  a  wall  in  the  rear  of  a 
dwelling  house  which  so  interfered  with  the  privacy  of  a  family 
residence  as  to  be  deemed  an  irreparable  injury.35 

§  101.  Mandatory  injunctions  more  favored  than  formerly 

Sir  George  Jessel,  Master  of  the  Kolls  in  1875  expressed  the 
opinion  that  the  same  caution,  neither  more  nor  less,  ought  to  bo 
exercised  by  courts  in  granting  mandatory  injunctions  as  in  grant- 
ing preventive.36  That  the  old  prejudice  against  mandatory  in- 
junctions has  ceased  to  exist  appears  also  in  tho  fact  that  section 
16  of  the  Act  of  Congress,  known  as  the  Interstate  Commerce  Law, 
empowers  the  courts  of  the  United  States  to  issue  a  writ  of  injunc- 
tion, mandatory,  or  othenvise  to  restrain  a  common  carrier  from 
further  continuing  a  violation  of  an  order  of  the  Interstate  Com- 
mission, and  enjoining  obedience  to  such  an  order.37  In  England,  by 
force  of  Lord  Cairns'  Act,38  the  court  might  in  its  discretion  award 
damages  to  be  paid  by  defendant  instead  of  issuing  a  mandatory 
injunction  against  him.39  When  the  plaintiff  has  a  clear  right  it 
may  be  better  for  the  wrongdoer  also,  as  in  the  case  of  a  continued 
trespass,  to  be  required  by  mandate  to  undo  what  he  has  done  as 
otherwise  he  could  be  persecuted  with  daily  suits,  die  in  diem,  for 

32.  Vaughn  v.  Yawn,  103  Ga.  557,      500— Jessel,  M.  R.:     "As  to  manda- 
29  S.  E.  759.  tory    injunctions,   their   history   is   a 

33.  Henderson    v.    Ogden    City    R.       curious  one." 

Co.,  7  Utah,  199,  26  Pac.  286.  37.    See    Interstate,    et«.,    Commis- 

34.  McDonogh  v.  Calloway,  7  Rob.  sion  v.  Lehigh  Valley  R.  Co.,  49  Fed. 
(La.)   442.  177. 

35.  Pierce  v.  New  Orleans,  18  La.  38.  21  &  22  Viet.,  ch.  27. 

Ann.  242.  39.  Smith  v.  Smith,  L.  R.  20  Eq. 

36.  Smith  v.  Smith,  L.  R.  20  Eq.       500— Jessel,  M.  R. 

182 


Classification  and  Foem. 


§102 


the  continual  damages  flowing  from  the  continuance  of  the  tres- 

40 

pass. 

§  102.  The  effectiveness  of  mandatory  injunctions. — Where  a 

defendant  is  restrained  from  a  threatened  violation  of  plaintiff's 
clearly  established  rights  and  has  already  begun  the  violation  with 
knowledge  of  such  rights,  a  mandatory  clause  will  sometimes  be 
added  requiring  defendant  to  restore  plaintiff  to  the  original  situa- 
tion.41 The  court  will  not  compel  an  innocent  plaintiff,  whose 
rights  have  been  encroached  upon  by  a  wrongdoer,  to  sell  them  at  a 
valuation,  but  will  compel  the  wrongdoer  to  restore  them  to  their 
original  condition,  and  to  pay  the  damages  sustained  by  plaintiff 
pending  the  suit,42  but  in  such  a  case  the  defendant  will  not  be 


40.  Wheelock  v.  Noonan,  108  N.  Y. 
179,  185,  15  N.  E.  67. 

41.  Lynch  v.  Union  Inst,  for  Sav- 
ings, 158  Mass.  374,  33  N.  E.  603, 
■where  Holmes,  J.,  said :  "  If  we  are 
to  infer,  though  it  does  not  appear 
with  definiteness,  that  the  defendant 
has  been  at  some  expense  already  on 
the  plaintiff's  premises,  we  see  no  rea- 
son to  doubt  that  it  has  acted  with 
knowledge  of  the  plaintiff's  rights. 
What  it  has  done  outside  of  the  plain- 
tiff's premises  and  not  interfering 
with  him  is  no  concern  of  his.  The 
defendant's  outlay  does  not  better  its 
case  on  the  question  of  a  prohibitory 
injunction,  and  we  see  no  reason  why 
it  should  not  be  required  to  restore 
the  premises  to  their  original  condi- 
tion." In  Ex  parte  Chamberlain,  55 
Fed.  704,  the  injunction  was  in  this 
form :  "  This  cause  came  on  to  be 
heard  on  petition,  rules  to  show  cause, 
return  thereto,  and  affidavits.  Hear- 
ing the  same  and  upon  due  considera- 
tion thereof  it  is  ordered  adjudged 
and  decreed  that  an  injunction  do  is- 
sue to  M.  V.  Tyler,  sheriff  of  Aiken 
county,   his   deputies   and  agents,  en- 


joining and  restraining  them  from 
further  intermeddling,  interfering 
with,  keeping  and  holding  the  per- 
sonal property  destrained  upon  by 
him  belonging  to  the  petitioner  as  re- 
ceiver of  the  S.  C.  Railway  Company, 
or  in  his  care  and  custody  as  receiver 
and  common  carrier,  and  that  this  in- 
junction remain  of  force  until  the  fur- 
ther order  of  this  court.  It  is  further 
ordered  that  the  said  property  be  re- 
stored to  the  custody  of  the  receiver 
of  this  court  and  that  the  marshal  put 
him  in  possession  thereof."  Plaintiff 
having  alleged,  and  the  evidence 
snowing,  that  defendant  had  erected 
a  gate  across  the  entrance  to  an  alley 
for  the  purpose  of  excluding  persons 
not  using  it  with  his  permission, 
equity  will  interfere  to  remove  the 
gate,  and  it  is  immaterial  that  plain- 
tiff might  open  the  gate  himself,  so 
long  as  his  right  to  use  the  alley  is 
disputed  and  resisted  by  defendant. 
Welsh  v.  Taylor,  50  Hun,  137,  2  N.  Y. 
Supp.  815. 

42.  Tucker  v.  Howard,  128  Mass. 
361,  Gray,  C.  J.:  "The  defendant 
having  by  the  service  of  process  full 


183 


§  103 


(  "i.assii  u  a  i  u>\    and   Form. 


subjected  to  ruinous  cost,  88  for  example,  in  removing  an  expensive 
structure,  unless  such  removal  is  indispensable  to  plaintiff's  use  of 
his  property.43  But  when-  the  defendant  has  endeavored  to  an- 
ticipate the  injunction  by  hurrying  on  some  building  or  structure 
he  is  wrongfully  erecting  he  will  be  compelled  by  mandatory  in- 
junction to  pull  it  down  without  regard  to  the  ultimate  result  of 
the  action.44 

§  103.   Relief    by    mandatory    injunction;    illustrations. — The 
cases  in  which  relief  by  mandatory  injunction  is  proper  and  will 


notice  of  the  plaintiff's  claim,  went 
on  to  build  at  his  own  risk ;  and  the 
injury  caused  to  the  plaintiff's  estate 
by  the  defendant's  wrongful  act  being 
substantial,  a  court  of  equity  will  not 
allow  the  wrongdoer  to  compel  inno- 
cent persons  to  sell  their  right  at  a 
valuation  but  will  compel  him  to  re- 
store the  premises  as  nearly  as  may 
be  to  their  original  condition.  Dent 
v.  Auction  Mart  Co.,  L.  R.  2  Eq.  238, 
246,  255;  Aynsley  v.  Glover,  L.  R. 
18  Eq.  544,  and  L.  R.  10  Ch.  283; 
Krehl  v.  Burrell,  7  Ch.  D.  551,  and 
11  Ch.  D.  146;  Schwoerer  v.  Boyl- 
ston  Market  Association,  99  Mass. 
285;  Creely  v.  Bay  State  Brick  Co., 
103  Mass.  514;  Nash  v.  New  England 
Ins.  Co.,  127  Mass.  91;  Salisbury  v. 
Andrews,  128  Mass.  336.  The  decree 
for  a  mandatory  injunction  and  for 
payment  of  damages  pending  the  suit 
must  therefore  be  affirmed  with 
costs."  In  the  case  last  cited  the  de- 
fendants were  restrained  from  erect- 
ing a  bridge  and  commanded  to  re- 
move the  portion  already  built. 

43.  As  to  a  part  of  an  alley  covered 
by  defendant's  building,  there  was  no 
allegation  that  its  use  was  necessary 
to  the  enjoyment  of  plaintiff's  prop- 
erty, nor  did  it  appear  that  it  was 
necessary.  Held,  that  it  being  evident 
that  an  award  of  damages  would  be 


sufficient  remuneration,  and  there  be- 
ing no  allegation  that  the  defendant 
was  not  responsible  for  any  damages 
that  might  be  recoveied,  and  the 
building  being  an  expensive  structure, 
equity  would  not  order  its  removal, 
though  wrongfully  erected.  Welsh  v. 
Taylor,  50  Hun,  137,  2  N.  Y.  Supp. 
815. 

44.  Daniel  v.  Ferguson  (1891),  2 
Ch.  D.  27.  In  this  case  after  the  de- 
fendant received  notice  on  Saturday 
that  an  injunction  was  going  to  be 
applied  for,  he  set  many  men  to  work, 
worked  all  night  and  on  Sunday,  and 
by  Monday  evening,  when  he  received 
notice  of  an  interim  injunction  he 
had  run  up  his  wall  to  a  height  of  39 
feet,  the  court  said :  "  Whether  he 
turns  out  at  the  trial  to  be  right  or 
wrong  a  building  which  he  has  erected 
under  such  circumstances  ought  to 
be  at  once  pulled  down,  on  the  ground 
that  the  erection  of  it  was  an  attempt 
to  anticipate  the  order  of  the  court. 
To  vary  the  order  under  appeal  would 
be  to  encourage  others  to  hurry  on 
their  buildings  in  the  hope  that  when  , 
they  are  once  up  the  court  might  de-  J 
cline  to  order  them  to  be  pulled  down. 
I  think  that  this  building  ought  to 
be  pulled  down  without  regard  to  the 
result  of  the  trial." 


184 


Classification  and  Foem.  §  10U 

be  granted  may  perhaps  be  better  shown  by  examples  than  by  any 
general  rule.  Thus  on  a  showing  of  recognized  grounds  for  in- 
junctive relief  such  an  injunction  has  been  decreed  to  compel 
defendant  to  remove  boulders  and  rocks  which  he  had  placed  on 
plaintiff's  lots  ;45  to  compel  the  removal  of  a  fence  which  obstructed 
plaintiff's  right  of  way  though  the  obstruction  was  not  a  nuisance 
but  an  invasion  of  a  private  right;46  to  compel  the  removal  of 
governors  from  gas  meters  owned  by  the  company  where  they  have 
been  illegally  placed  thereon  by  others  ;47  to  compel  the  removal  of  a 
bridge  whereby  egress  from  plaintiff's  land  was  obstructed  and  the 
light  and  air  shut  off  ;4S  to  compel  a  pastor  to  deliver  possession  of 
the  parsonage  and  church  records  where  another  has  been  recog- 
nized as  pastor  by  the  trustees;49  to  compel  the  restoration  by  a 
sheriff  of  property  which  he  had  distrained  and  taken  from  the 
custody  of  a  court  receiver;50  to  compel  defendant  to  deliver  to 
plaintiff  a  specific  chattel  in  execution  of  a  judgment  in  replevin  ;51 
to  compel  the  owner  of  a  house  to  permit  water  to  flow  through  the 
main  pipes  into  a  tenant's  water  pipes;52  to  compel  a  telegraph 
company  to  furnish  market  reports  to  subscribers  ;M  to  compel  the 
removal  of  a  fence  erected  by  a  local  board  whereby  an  abutting 
owner  was  deprived  of  his  access  to  a  promenade  which  for  many 
years  had  been  used  as  a  highway  for  foot  passengers  ;54  to  compel 
the  taking  down  of  a  wall  hastily  built  by  defendant  in  anticipation 
of  the  court's  restraint,  even  though  he  might  turn  out  on  the  trial 
to  be  right  ;55  to  compel  the  restoring  of  running  water  to  its  natural 
channel  at  the  suit  of  a  party  whose  lands  include  either  the  whole 

45.  Wheelock  v.  Noonan,  108  N.  Y.       191,    13   S.   Ct.   791,   793. 

179,  15  N.  E.  67.  51.  Cain  v.  Cain.  20  N.  Y.  Supp. 

46.  Avery  v.  N.  Y.  Central  R.  Co.,       45. 

106  N.  Y.   142,   12  N.  E.  619.  52.  Brauns    v.    Glesige,    130    Ind. 

47.  Blondell   v.   Consolidated   Gas,       167,  29  N.  E.   1061. 

89  Md.  732,  43  Atl.  817,  46  L.  R.  A.  53.  Delafield    v.    Commercial    Tel. 

187.  Co.,  22  Abb.  N.  C.  450,  3  N.  Y.  Supp. 

48.  Salisbury     v.     Andrews      128      921. 

Mass.  336.  54.  Ramuz      v.      Southend      LocaJ 

49.  Gross  v.   Wieand,   151  Pa.  St.      Board    (1892    Ch.  D.),  67  L.  T.  169. 
639,  25  Atl.  50.  55.  Daniel  v.  Ferguson    (1891),  2 

50.  In   re    Tyler,    149   U.  S.    164,      Ch.  D.  27. 

185 


§  104  Classification   and  Form. 

or  a  part  of  such  channel  ;;<c  and  tu  compel  u  railroad  company  to 
restore  a  highway  which  it  crosses  to  its  former  condition  of  use- 
fulness, in  an  action  by  the  town  which  is  bound  to  keep  it  in 
repair."  Under  the  Compiled  Utah  Laws  of  1888,  §  3300,  pro- 
viding that  an  injunction  may  be  granted  when  it  appears  by  the 
complaint  that  plaintiff  is  entitled  to  the  relief  demanded,  which 
consists  in  restraining  the  "  commission  or  continuance  "  of  the 
act  complained  of,  the  court  may  grant  a  mandatory,  as  well  as  a 
preventive,  writ  to  a  street-railroad  company  against  a  defendant 
who  has  piled  obstructions  on  its  road-bed.58 

§104.  Same  subject;  illustrations  continued. — Continuing  the 
examples  begun  in  the  last  preceding  section,  mandatory  injunc- 
tions have  been  allowed  to  compel,  under  the  Interstate  Commerce 
Law,  common  carriers  to  keep  up  a  continuous  passage  of  freight 
between  them  as  it  comes  in  the  usual  course;09  to  compel  a  South 
Carolina  sheriff  to  restore  property  distrained  by  him  when  it  was 
in  the  possession  of  a  receiver  of  a  federal  court  ;60  to  compel  county 
commissioners  to  pay  over  public  school  money  to  the  de  facto 
school  treasurer  so  that  there  shall  be  no  stoppage  of  public  business 
to  the  prejudice  of  public  education;61  to  compel  a  gas  company  to 
furnish  gas  at  rates  fixed  by  a  city  ordinance,  so  long  as  it  continues 
to  enjoy  its  franchises;62  to  compel  defendant  to  remove  a  break- 
water made  by  him  in  a  boundary  stream  by  which  the  water  in 
times  of  freshets  is  forced  with  great  force  against  the  concave 
bank  of  plaintiff's  land;63  to  restore  a  flow  of  the  water  which  had 
been  cut  off  from  a  factory  and  was  necessary  to  run  it;64  to  compel 

56.  Corning   v.    Troy,   etc.,    Fac-       missioners  v.  Board  of  County  School 
tory,  40  N.  Y.  691.  Commissioners,   77  Md.   283,  26   Atl. 

57.  Jamestown    v.    Chicago.    B.    &       115. 

N.  R.  Co.,  69  Wis.  648,  34  N.  W.  728.  62.  Zanesville    Gas    Light     Co.    v. 

58.  Henderson    v.    Ogden    City    R.  Zanesville,  47  Ohio  St.  35,  23  N.  E. 
Co.,  7  Utah,  199,  26  Pac.  286.  60. 

59.  Toledo,   etc.,   R.    Co.   v.   Penn-  63.  Nicholson  v.  Getchell,  96  Cal. 
sylvania  Co.,  54  Fed.  730.  394,  31  Pac.  265. 

60.  Ex  parte  Chamberlain,  55  Fed.  64.  Isenberg  v.  East  India  House 
704.  Estate,  33  L.  J.  Eq.    (N.  S.)    392. 


61.  Board  of  County  School  Com- 


186 


Classification  and  Form.  §  105 

a  bridge  company  to  change  its  bridge  according  to  certain  specifica- 
tions so  as  not  to  obstruct  navigation  ;65  to  compel  a  railroad  com- 
pany to  finish  its  road  according  to  its  agreement;66  to  compel 
health  officers  not  to  allow  a  sewer  to  remain  open  ;67  to  compel  the 
closing  of  a  ditch  by  which  plaintiff's  lands  were  being  flooded  j68  to 
compel  the  delivery  of  the  possession  of  premises  where  a 
conveyance  had  been  decreed;69  to  compel  the  restoration 
of  church  records,71  and  of  ancient  lights  to  their  former  con- 
dition,72 even  before  final  hearing  where  pending  the  suit,  the  de- 
fendant had  continued  the  building  complained  of,73  and  to  restrain 
the  continuance  of  an  obstruction  to  an  easement  which  consisted 
of  a  right  to  light  from  above  through  sky-lights  or  floor  lights  in 
existence  at  the  time  the  plaintiff  took  his  lease;74  and  to  compel 
defendant  to  remove  a  wall  from  a  passage-way  in  which  plaintiff 
had  a  light  and  air  easement  ;75  and  to  compel  the  removal  of  build- 
ings erected  in  violation  of  restricting  covenants.76 

§105.  Common  and  special  injunctions;  common  abolished. 
— In  the  former  English  practice  provisional  injunctions  were 
divided  into  common  and  special ;"  the  common  being  issued  as  of 
course,  upon  a  default,  and  the  special  upon  proofs  and  generally 
on  notice  to  the  adverse  party.    Common  injunctions  were  abolished 

65.  Pennsylvania  v.  Wheeling  71.  Lutheran  Evang.  Church  v. 
Bridge  Co..  13  How.   (L.  S.)  518.  Cri-tgau,  34  Wis.  328. 

66.  Storer  v.  Great  Western  R.  72.  Kelk  v.  Pearson,  L.  R.  6  Ch. 
Co.,  2  Y.  &  C.  Ch.  48.  809. 

67.  Manchester  R.  Co.  v.  Worksop  73.  Beadel  v.  Perry,  L.  R.  3  Eq. 
Board,  23  Beav.  209.  465.     If  plaintiff  delays  too  long  the 

68.  Foot  v.  Bronson,  4  Lans.  (M.  court  will  refuse  an  injunction  and 
Y.)    47.  leave  him  to  his  remedy  in  damages. 

69.  Garretson  v.   Cole,   1   Harr.  &  Senior  v.  Pawson,  L.  R.  3  Eq.  330. 

J.    (Md.)    370;   but  not  to  command  74.  O'Neill   v.   Breese,   3   Misc.   R. 

the  delivery  of  a  void  deed.     Piersoll  (N.  Y.)    219,  23  N.  Y.  Supp.  526. 

v.  Elliott,  6  Pet.    (L.  S.)    95.  75.  Tucker  v.  Howard,    128  Mass. 

A  mandatory  injunction  trans-  361. 

ferring  possession  of  property  la  76.  Lord   Manners   v.   Johnson,   L. 

improper.— Minneapolis  k  St.  L.  R.  R.    1    Ch.   673;     Schwoerrer   v.   Boyl- 

Co.  v.   Chicago,  Milwaukee  &  St.  P.  ston  Market  Assoc,  99  Mass.  285. 

R.  Co.,  116  Iowa,  681,  88  N.  W.  1082.  77.  Hilliard,    Injunctions,    §    8. 

187 


§105 


Classification  and  Foum. 


by  the  Chancery  Procedure  Act  of  1852,  and  all  injunctions  are 
now  special  only,  that  is,  granted  on  the.  merits  only  at  any  time 
after  a  bill  is  on  file ;  and  the  prima  facie  case  made  by  this  bill 
must  be  supported  by  affidavit.78  So  it  is  declared  that  the  com- 
mon injunction  so  frequently  mentioned  in  the  older  reports  and 
books  of  practice,  was  the  writ  of  injunction  which  issued  as  of 
course,  upon  the  default  or  delay  of  the  defendant  in  answering 
the  bill,  and  its  effect  upon  a  pending  suit  at  law  was  determined 
by  the  progress  of  that  suit  at  the  date  of  its  issuance.  If  the 
injunction  issued  before  declaration,  it  stayed  everything ;  if  after- 
wards, it  stayed  execution  only,  not  the  trial.79  The  common  in- 
junction as  distinguished  from  the  special  is  directed  against  a 
party  to  some  suit  that  involves  an  equity  which  it  is  desired  to 
protect.80  In  this  country  in  the  first  half  of  this  century  what 
was  called  the  common  injunction  was  not  unknown,  its  object,  for 
the  most  part  being  to  stay  proceedings  at  law.  If  the  answer 
fully  denied  the  merits,  the  injunction  was  dissolved  of  course 
[without  permitting  the  plaintiff  to  contradict  the  answer  by  affi- 
davits.81 


78.  Joyce,  Injunc.  v.  1;  Senior  v. 
Pritchard,  16  Beav.  473;  Lovell  v. 
Galloway,  17  Beav.  1.  In  1  Hoffman's 
Chancery  Practice,  78,  it  is  said  there 
is  nothing  in  our  practice  similar  to 
this  English  practice  of  issuing  the 
writ  upon  the  presumed  admission 
of  the  defendant  by  his  default,  of 
the  plaintiff's  right  to  it.  A  special 
application  is  always  made  to  the 
chancellor  or  master  and  the  merits 
of  the  application  are  examined  by 
him. 

79.  Chadwell  v.  Jordan,  2Tenn. 
Ch.  635,  636,  citing  Garlick  v.  Pear- 
son, 10  Ves.  452;  Hendrick  v.  Dul- 
lum,   1  Tenn.  427. 

80.  Heilig  v.  Stokes,  63  N.  C. 
612,  615,  wherein  it  is  declared  that 
a  common  injunction  is  an  auxiliary 
decree  made  to  restrain  parties  from 


litigation  at  law  where  equitable  ele- 
ments are  involved  in  the  dispute. 

81.  In  Poor  v.  Carleton,  3  Sumn. 
70,  73,  Story,  J.,  said:  "This  it  is 
to  be  observed  is  not  the  case  of  the 
common  injunction  issued  against 
the  defendants  for  not  appearing,  or 
for  not  answering  the  bill  at  the  time 
prescribed  by  tne  practice  of  the 
court.  In  such  cases,  which  usually 
occur  to  stay  proceedings  at  law,  it 
is  of  course  to  dissolve  such  an  in- 
junction if  the  answer  denies  the 
whole  merits;  and  the  plaintiff  will 
not  be  permitted  to  read  affidavits  in 
contradiction  to  the  answer  upon  the 
the  motion  to  dissolve.  This  is  suf- 
ficiently apparent  from  Eden  on  In- 
junctions, 88,  108,  118,  326."  To  the 
same  effect  is  Orr  v.  Littlefield,  1 
Wood.  &  M.   13,  19.     In  the  Wood 


188 


Classification  and  Foem.  §§  105a,  106 

§  105a.  Special  injunctions  further  considered. — A  special  in- 
junction is  a  writ  granted  upon  special  grounds  arising  out  of  tho 
circumstances  of  the  case.82  Such  an  injunction  was  founded,  not 
on  an  equity,  existing  in  the  controversy  at  law  between  the  parties, 
but  on  something  collateral  to  it ;  as,  for  example,  the  necessity  of 
protecting  property  in  dispute,  pending  the  litigation.83  Special 
injunctions  issue  only  upon  good  cause  shown  by  affidavit,  and 
operate  according  to  the  terms  of  the  grant.84  In  this  connection 
it  is  said  in  an  early  case  in  Pennsylvania:  "  A  special  injunction 
is  one  of  the  highest  and  most  delicate  powers  which  can  be  exer- 
cised by  a  judicial  tribunal.  When  manifestly  indispensable,  in 
the  administration  of  preventive  justice,  it  should  undoubtedly  be 
employed  without  hesitation  or  timidity.  Yet  like  all  other  extreme 
authorities,  it  should  be  used  only  when  the  case  of  the  party 
invoking  it  is  clear  and  too  much  caution  cannot  be  exercised  by 
the  court,  in  ascertaining  that  the  case  presented  for  its  summary 
action  is  one  which  admits  neither  doubt  nor  delay."  85  In  the 
courts  of  the  United  States  as  injunctions  are  granted  only  on 
notice  to  the  adverse  party  all  interlocutory  injunctions  are 
regarded  as  special.88 

§  106.  Prerogative  writs  of  injunction. — The  writ  of  injunc- 

worth  v.  Rogers.  3  Wood.  &  M.  135,  for  further  time  to  answer,  or  for  a 

137,   the   court,    speaking   of   a   com  commission  to  take    his  answer.     In 

mon  injunction,  says,  "  it  is  usually  all   these   cases   the   injunction    is  of 

dissolved   as   a  matter   of   course   on  course.    .     .     .     All  other  injunctions 

the  coming  in  of  an  answer  denying  granted  upon  other  occasions,  or  in- 

merits,  or  a  legal  title  in  the  plain-  volving    other    directions    are    called 

tiffs,    and   without   any   inquiry    into  special  injunctions." 

the  truth  of  the  allegation."     Story,  82.  Aldrich    v.    Kirkland,    6   Rich. 

Eq.  Jur.,  §  892.     "Injunctions  to  re-  L.   (S.  C.)   334,  340. 

strain     suits     at     law     are     usually  83.  Jarman  v.  Saunders,  64  N.  C. 

spoken  of  as  common  or  special.  The  367,  370. 

common  injunction  so  frequently  al-  84.  Chadwell  v.  Jordan,    2    Tenn. 

luded  to  in  the  books  of  reports  and  Ch.  635,  636. 

practice  is  the  writ  of  injunction  is-  85.  Biddle  v.  Ash,  2  Ashm.    (Pa.) 
sued  upon  and  for  the  default  of  the  218.      Per   King,   J.,    quoted   in   Pas- 
defendant,  in  not  appearing  to  or  an-  senger  Ry.  v.  Easton,  7   Pa.  Co.  Ct. 
swering  the  bill.     It  is  also  granted  R.    569. 
where  the  defendant  obtains  an  order  86.  Abb.  Law.  Diet.,  in  loco. 

189 


§  107  Classification  and  Form. 

tion  is  sometimes  issued  as  a  prerogative  writ  in  matters  publici 
juris  in  actions  brought  by  the  Attorney-General  in  the  name  of 
the  State;  and  in  such  cases  the  prerogative  writ  of  injunction 
is  issued  by  a  court  of  lasl  resort.  Thus  in  L892  such  a  writ  was 
issued  in  an  action  on  behalf  of  the  State  of  Wisconsin  to  restrain 
the  Secretary  of  State  from  issuing  or  publishing  notices  of  an 
election  of  members  of  the  Legislature  under  an  invalid  appor- 
tionment act.87  So  a  prerogative  writ  of  injunction  was  issued  in 
the  same  State  to  restrain  railroad  companies  from  exacting  tolls 
for  the  carriage  of  passengers  or  freight  in  excess  of  the  legal 
rates  ;88  and  to  restrain  a  common  council  and  city  clerk  from 
executing  an  unconstitutional  law  for  the  obstruction  of  a  navigable 
river.89  Such  writs  are  also  authorized  by  the  constitution  of 
Colorado.90  The  filing  of  a  bill  for  injunction  by  the  State  upon 
the  relation  of  the  Attorney-General,  to  restrain  a  public  nuisance 
in  the  form  of  an  obstruction  to  a  public  highway,  gives  the  court 
jurisdiction;  but  where  the  facts  are  disputed,  or  where  the  right 
has  been  settled  in  favor  of  defendant  on  an  indictment  against 
him,  it  is  an  exercise  of  sound  discretion  to  refuse  the  injunction.91 

§  107.  Perpetual  and  preliminary  injunctions. — With  refer- 
ence to  their  duration  injunctions  are  divided  into  final  or  per- 
petual or  permanent  injunctions;  and  preliminary  or  provisional, 
or  interlocutory,  or  as  they  are  called  in  New  York,  temporary 
injunctions.92  A  perpetual  injunction  is  one  which  is  granted 
upon  the  final  trial.93    A  final  injunction  is  granted  when  the  rights 

87.  State  v.  Cunningham,  81  Wis.  Kerr,  Injunctions,  9;   Hilliard.  Injunc- 
440,  51  N.  W.  724.  tions,  §  8.     There  are  many  cases  in 

88.  Attorney   General  v.   Railroad  which    the   complainant   may    be    en- 
Companies.  35  Wis.  512.  titled   to   a    perpetual    injunction   on 

89.  Attorney      General      v.      Eau  the  hearing  where  it  would  be  mani- 
Claire,  37  Wis.  400.  festly  improper   to  grant  an   injunc- 

90.  Const.,  art.  VI.,  §  3;  Wheeler  tion  in  limine.     N.  Y.  Printing  Co.  v. 
v.  Northern  Colorado  Irrigation  Co.,  Fitch    1  Paige  (N.  Y. ),  97    98. 

9  Col.  248,  11  Pac.  103.  93.  Riggins  v.  Thompson,  96  Tex. 

91.  Commonwealth    v.    Croushore,       154,  159,  71  S.  W.  14. 

145  Pa.  fct.  157.  22  Atl.  807.  The  words  "  perpetual  injunc- 

92.  Beach    Mod.   Eq.  Jur.,  §  638;       tion"   in   a    decree   in   a   patent 

190 


Classification  and  Fokm.  §  107 

of  the  parties  are  determined.  Final  injunctions  may  be  made 
mandatory,  commanding  acts  to  be  done,  the  reason  of  the  distinc- 
tion between  a  final  and  a  preliminary  injunction  being  that  the 
latter  is  granted  when  the  rights  of  the  parties  are  in  controversy, 
while  the  former  is  after  the  rights  have  been  determined.94  It 
forms  part  of  the  decree  made  after  hearing  on  the  merits,  whereby 
the  defendant  is  finally  concluded  from  the  assertion  of  a  right  or 
perpetually  restrained  from  the  commission  of  an  act  which  would 
be  contrary  to  equity.95  A  perpetual  or  permanent  injunction  being 
in  no  sense  provisional,  cannot  be  granted  where  the  pleadings  do 
not  show  its  necessity  and  it  is  not  asked  for  as  an  element  of  final 
relief;  therefore  it  cannot  be  granted  by  mere  order  when  no  action 
between  the  parties  is  pending,  though  actions  covering  the  contro- 
versy have  gone  to  final  judgment.96  The  allegation  in  the  com- 
plaint of  an  apprehended  injury  is  not  sufficient  to  justify  the 
decree  for  a  final  injunction,  but  the  facts  must  be  stated  to  show 
that  the  apprehension  is  well  founded.97  A  perpetual  injunction 
cannot  be  granted  on  motion  and  affidavits  under  any  system  of 
practice,  old  or  new.98  A  perpetual  injunction  should  not  be  too 
broad,  thus  it  is  error  to  enjoin  county  commissioners  perpetually 
from  opening  a  road  on  the  ground  that  they  have  not  assessed  the 
damages  to  land  owners  and  provided  for  the  payment  thereof; 
they  should  be  restrained  only  until  they  comply  with  such  pre- 
liminary  requirements.95     The  plaintiff  may  obtain  a  perpetual 

ease   mean  only   for   the   life  of  the  In  Ladd  v.  Flynn,  90  Mich.   181,  51 

patent  which   is  to  be  determined  by  N.  W.  203.  it  was  held  to  be  error,  on 

the  statute  and  all  the  facts  of  the  determination  of  a  motion  on  affidavits 

case  and  not  merely  by  the  terms  of  for  preliminary  injunction  against  de- 

the  grant  in  the  patent.    De  Florez  v,  fendants     for     maintaining     a     fence 

Raynolds.   8   Fed.  434,  438.  which  obstructs  plaintiffs  windows  to 

94.  Southern  Pac.  R.  Co.  v.  Oak-  grant  an  order  directing  that  defend- 
land,  58  Fed.  50,  54.  ant  abate  the  fence  instantcr,  that  it 

95.  Kerr.   Injunctions,  9.  be  not  rebuilt,  and  that  all   interfer- 

96.  Jackson  v.  Bunnell.  113  N.  Y.  ence  with  plaintiff's  enjoyment  of  the 
216,  21  N.  E.  79.  premises   perpetually   cease;    as   such 

97.  Troy,   etc.,   R.   Co.   v.   Boston,  an  order  is  a  final  determination  of 
etc.,  R.  Co.,  86  N.  Y.  107.  122.  the  rights  between  the  parties. 

98.  Whitehurst  v.  Greene,  69  N.  C.  99.   Champion  v.  Sessions,  2  Nev. 
131 ;  Hornesby  v.  Burdell,  9  S.  C.  303.  271. 

191 


§108 


Classification  and  Form. 


injunction  at  the  hoaxing  though  he  has  not  applied  for  a  pre- 
liminary injunction.1  If  he  neglects  to  bring  his  case  to  a  hearing 
in  such  a  state  that  the  court  can  adjudicate  on  it  without  delay, 
the  court  may  retain  his  bill  and  give  him  an  opportunity  of  estab- 
lishing his  right  at  law  or  may  at  once  dismiss  his  bill.2 

§  108.  Perpetual  injunctions  further  considered. — A  per- 
manent injunction  is  a  judgment  or  decree,  and  cannot  be  granted 
on  affidavits  after  the  action  has  been  concluded  by  judgment.  An 
injunction  may,  however,  be  granted  on  affidavits  after  an  inter- 
locutory judgment,  which  leaves  the  action  still  pending.3  And 
where  a  jury  find  a  special  verdict,  the  facts  of  which  warrant  a 
perpetual  injunction,  it  is  proper  for  the  court  to  award  it,  though 
the  jury  have  not,  in  express  terms,  found  that  defendant  should 
be  perpetually  enjoined.4  On  denying  a  motion  to  dissolve  a  tem- 
porary injunction,  the  plaintiff  is  not  entitled  to  a  perpetual  in- 
junction, and  the  parties  should  be  heard  on  the  merits  of  the  bill, 
if  a  default  has  not  been  taken,  before  the  final  decree  is  rendered.3 


1.  Kerr,  Injunctions,  44.  Where  a 
company  has  acquired  vested  rights 
by  an  authorized  contract  with  a  city, 
another  company  will  be  perpetually 
enjoined  by  decree  from  interference 
with  those  rights  under  a  subsequent 
contract  with  the  city.  Rutland  Elec- 
tric Co.  v.  Marble  City  E.  L.  Co.,  65 
Vt.  377,  26  Atl.  635. 

2.  Bacon  v.  Jones,  4  Myl.  &  C.  433, 
437;  Norton  v.  Nichols,  4  Kay  &  J. 
475. 

3.  Jackson  v.  Bunnell,  113  N.  Y. 
216,  21  N.  E.  79;  Travis  v.  Myers,  67 
N.  Y.  542.  In  the  last  case  cited,  af- 
ter a  decree  for  an  accounting,  an  in- 
junction restraining  suits  at  law  was 
granted  on  motion,  but  the  decree  was 
interlocutory,  so  that  the  action  was 
still  pending,  and  not  ended  by  a  final 
judgment. 

4.  McManus  v.  Cook,  59  Ga.  485. 


5.  In  Ottawa  v.  Walker,  21  111.  605, 
the  defendants  appeared  and  moved 
to  dissolve  the  injunction  before 
granted,  but  the  motion  was  over- 
ruled, and  a  decree  rendered  making 
the  injunction  perpetual.  The  com- 
plainants took  no  rule  on  defendants 
for  an  answer,  nor  in  any  manner  put 
them  in  default.  The  bill  was  not 
taken  as  confessed,  and  no  answer  or 
demurrer  was  filed.  The  court  said: 
"  The  defendant  may  move  to  dissolve 
at  any  stage  of  a  cause,  and  its  being 
overruled  only  operates  to  continue 
the  injunction  to  final  hearing.  The 
mere  motion  to  dissolve  does  not  au- 
thorize the  court,  on  overruling  it,  to 
make  the  injunction  perpetual.  The 
defendant  has  still  the  right  to  be 
heard  on  the  merits.  The  court  can 
only  render  a  decree  making  the  in- 
junction perpetual  on  a  bill  pro  con- 


192 


Classification  and  Form.  §  109 

On  the  hearing  of  an  application  for  preliminary  injunction  on  a 
bill  which  is  absolutely  controverted  by  the  answer,  and  on  ex  parte 
affidavits,  it  is  error  to  decree  a  permanent  injunction,  as  prayed 
for  in  the  bill,  on  the  theory  that  there  are  no  disputed  facts  in 
the  case.6  But  where  it  is  apparent  on  the  face  of  a  bill  that  com- 
plainants cannot  be  entitled  to  any  relief,  the  bill  may  be  dismissed 
at  the  hearing  of  the  application  for  a  preliminary  injunction.7 
And  where  the  reason  for  granting  a  perpetual  injunction  has 
ceased  at  the  time  of  the  trial  a  refusal  to  grant  such  an  injunction 
and  the  dismissal  of  the  complaint  is  justified.8  And  where  there 
is  no  equity  in  the  bill,  or  the  case  made  shows  a  plain  remedy  at 
law,  an  appellate  court  may  dismiss  the  bill  sua  sponte.9  It  is  also 
error  for  the  lower  court  to  decree  a  perpetual  injunction,  on  the 
same  facts  upon  which  the  court  of  last  resort  in  the  State  has 
already  decided  against  a  preliminary  injunction  in  the  same 
action.10  Where  the  defendant's  demurrer  to  a  bill  has  been  over- 
ruled, and  a  preliminary  injunction  has  been  granted,  the  defend- 
ant is  often  satisfied  that  a  further  contest  will  be  hopeless,  and 
submits  to  a  final  decree  making  the  injunction  perpetual.11 

§  109.  Interlocutory,  preliminary,  or  temporary  injunctions. — 
Temporary  or  interlocutory  injunctions  are  such  as  are  to  continue 
until  the  final  hearing,  or  generally  until  further  order.12  An  in- 
junction of  this  character  is  said  to  be  an  act  of  extraordinary 
power  on  the  part  of  the  court,  in  behalf  of  either  party  to  an 
action  before  trial,  is  always  cautiously  granted,  and  it  must  fairly 
appear  upon  all  the  papers  presented  before  such  injunction  is 
granted  that  the  plaintiff  will  suffer  irreparable  injury  if  it  be  not 

fesso,  on  overruling  a  demurrer  to  the  9.    Freeman    v.    Timanus,    12    Fla. 

bill,   or  upon   a   hearing  on   the   bill  393. 

answer,   exhibits   and   proofs."  10.    Thome    v.    Sweeney,    13    Nev. 

6.  Gross  v.  Wieand,  151  Pa.  St.  639,  415. 

25  Atl.  50.  11.  Heaton  Button  Fastener  Co.  v. 

7.  Sauls  v.  Freeman,  24  Fla.  209,  Dick,  52  Fed.  067;  Kerr,  Injunctions, 
4  So.  525.     See,  also,  Alsup  v.  Allen,       45. 

43  Tex.  598.  12.  Gardner  v.  Gardner,  87  N.  Y. 

8.  Clancy  v.  Geb,  126  Wis.  286,  104       14;  People  v.  Randall,  73  N.  Y.  416. 
N.  W.  746. 

193 

13 


§109 


Classification  and  Form. 


issued  or  that  it  is  necessary  to  preserve  the  status  of  the  parties 
or  some  sufficient  cause  showing  the  need  of  hasty  action  exists.12 
It  should  not  be  awarded  except  in  clear  cases  of  right  and  where  no 
doubt  exists  as  to  the  claim  of  the  plaintiff  to  the  remedy  ho  in- 
vokes.14 The  rule  is  probably  more  correctly  stated  by  saying  that 
a  temporary  injunction  will  not  be  granted  where  it  is  not  reason- 
ably probable  that  the  suit  will  be  determined  in  plaintiff's  favor.,R 
A  temporary  injunction  is  not  a  matter  of  strict  right.  Its  issue 
rests  with  the  sound  discretion  of  the  judge  or  court,  and  before 
one  is  issued  there  should  be  a  full  showing  of  all  the  facts  that 
the  judge  may  act  with  a  thorough  understanding  of  the  entire 
case.16  And  an  injunction  pendente  lite  should  not  be  granted 
where  there  is  nothing  to  indicate  that  the  acts  complained  of  are 
present  continuing  acts  or  that  there  are  any  threats  or  indications 
of  their  continuance  in  the  future  and  where  it  appears  that  the 
last  act  on  the  part  of  the  defendants  occurred  some  time  prior  to 
the  commencement  of  the  suit.17  Such  an  injunction  is  provisional 
in  its  nature  and  the  rights  of  the  parties  in  respect  to  a  judgment 


13.  Johnson  v.  Kingston  Board  of 
Education,  38  Misc.  R.  (N.  Y.)  593, 
78  N.  Y.  Supp.  53.    Per  Betts,  J. 

See,  also,  Capital  City  Gaslight  Co. 
v.  Des  Moines,  72  Fed.  829 ;  Commerce 
Vault  v.  Hurd,  73  111.  App.  107;  Hor- 
ton  v.  Forty-Second  St.  M.  &  St.  N. 
A.  R.  Co.,  14  App.  Div.  (N.  Y.)  629, 
43  N.  Y.  Supp.  1156. 

A  pi  eliminary  injunction  is 
the  strong  arm  of  the  court. — 
Waring  v.  Cram,  1  Pars.  Eq.  Cas. 
(Pa.)  516. 

Must  be  pressing  necessity. — 
As  a  preliminary  injunction  is  in  its 
operation  somewhat  like  judgment 
and  execution  before  trial,  it  is  only 
to  be  resorted  to  from  a  pressing  ne- 
cessity to  avoid  injurious  conse- 
quences which  cannot  be  repaired  un- 
der any  standard  of  compensation.  It 
is,  therefore,  a  preventive  remedy 
only.      Mammoth   Vein  Consol.   Coal 


Co.'s  Appeal,  54  Pa.  St.  183,  188. 
Per  Thompson,  J.  See,  also,  City  of 
Laporte  v.  Scott  (Ind.  1906),  76  N. 
E.  878. 

14.  Waring  v.  Cram,  1  Pars.  Eq. 
Cas.  (Pa.)  516.  Per  King,  J.,  cited 
with  approval  in  Passenger  Railway 
v.  Easton,  7  Pa.  Co.  Ct.  R.  569.  See, 
also,  Knoxville  v.  Africa,  77  Fed.  501, 
23  C.  C.  A.  252,  47  U.  S.  App.  74. 
But  compare  Wilson  v.  Consolidated 
Store  Service  Co.,  88  Fed.  286,  31  C. 
C.  A.  533,  50  U.  S.  App.  400,  rev'g 
83  Fed.  201. 

15.  Wilkinson  v.  Dobbie,  12 
Blatchf.   (U.  S.)   298. 

16.  State  v.  Parsons  (Kan.  1908), 
95  Pac.  391,  392,  citing  Olmstead  v. 
Koester,  14  Kan.  463. 

17.  Sleicher  v.  Grogan,  43  App. 
Div.  (N.  Y.)  213,  59  N.  Y.  Supp. 
1065. 


194 


Classification  and  Form. 


§  100a 


in  a  trial  upon  the  merits  is  not  affected  by  the  action  of  the  court 
or  judge  in  granting  or  refusing  it.18  The  discretion  of  the  court 
in  this  respect  is  not  conclusive,  either  upon  the  court  or  the 
parties  in  the  disposition  of  the  cause  by  final  decree.19  In  grant- 
ing or  refusing  temporary  relief  by  preliminary  injunction,  courts 
of  equity  should  in  no  manner  anticipate  the  ultimate  determina- 
tion of  the  question  of  right  involved.20 

§  109a.  Same  subject;  object  of. — A  preliminary  injunction  is 
only  a  provisional  remedy,  the  sole  object  of  which  is  to  preserve 
the  subject  in  controversy  in  it-  then  condition  and  without  deter- 
mining any  question  of  right,  merely  to  prevent  the  further  per- 
petration of  wrong,  or  the  doing  of  any  act  whereby  the  right  in 
controversy  may  be  materially  injured  or  endangered.22  This 
doctrine  is  sustained  by  numerous  authorities.23     The  status  quo 


18.  Peck  v.  Goodberlett.  100  N.  Y. 
180,  189,  16  N.  E.  350,  wherein  the 
court:  "The  injunction  was  made 
before  the  defendant  answered,  and 
by  its  terms  was  to  continue  only  dur- 
ing the  pendency  of  the  action.  Its 
interposition  was  within  the  discre- 
tion of  the  judge  or  court  granting  it, 
but  in  no  way  affected  the  case  in  a 
trial  upon  the  merits." 

See,  also,  Payton  v.  Payton,  86  Ga. 
773,  13  S.  E.  127;  Paul  v.  Munger,  47 
N.  Y.  469.  473;  Hazen  v.  Lyndonville 
Nat.  Bank,  70  Yt.  543,  41  Atl.  1046, 
67  Am.  St.  Piep.  680. 

See  §  112  herein. 

19.  Andrae  v.  Redfield,  12  Blatchf. 
(U.  S.)   407,  425. 

20.  Helm  v.  Gilroy,  20  Oreg.  517, 
520,  26  Pac.  851. 

Order  should  not  dispose  of 
case  on  merits. — An  order  for  a 
temporary  injunction  should  not  pur- 
port to  dispose  of  the  issues  upon  the 
merits.  Alston  v.  Limehouse,  60  S.  C. 
559,  568.  —  S.  E.  — ,  wherein  it  is 


said  :      "  No  fact  decided   upon   such 
motion     is    concluded     thereby,     and 
when  the  other  issues  are  brought  to 
trial,  they  are  to  be  determined  with 
out  reference  to  said  orders." 

22.  Helm  v.  Gilroy.  20  Oreg.  517, 
520,  26  Pac.  851.  See,  also,  Darling- 
ton Oil  Co.  v.  Pee  Dee  Oil  &  Ice  Co., 
62  S.  C.  196,  220,  40  S.  E.  169,  citing 
lo  Encyc.  PL  &  Pro.  878. 

23.  United  State*. — Southern  Pac. 
R.  Co.  v.  Oakland,  58  Fed.  50,  53; 
Mexican  Ore  Co.  v.  Mexican  Guadu- 
lupe  Co.,  47  Fed.  351.  See  Northern 
Pac.  A.  Co.  v.  Spokane,  52  Fed.  427. 

Alabama. — A  preliminary  injunc 
tion,  commonly  spoken  of  as  a  tempo- 
rary injunction,  is  granted  pending  a 
hearing  on  the  merits,  and  only  upon 
the  complainant's  entering  into  bond 
with  surety  conditioned  and  payable 
;i  a  required  by  law.  .  .  .  The  writ 
is  obtained  upon  an  ex  parte  hearing 
and  the  bond  is  required  as  a  protec- 
tion against  the  abuse  of  this  extra- 


195 


§  109b 


Classification  and  Form. 


which  it  is  sought  to  protect  is  that  existing  at  the  beginning  of  the 
controversy  and  an  injunction  should  not  issue  to  protect  an  advan- 
tage subsequently  gained. 


2i 


§  109b.  Preliminary  injunctions  further  considered. — A  pre- 
liminary injunction  is  different  from  a,  permanent  injunction  in 


ordinary  process,  and  to  prevent  op- 
pression by  its  use.  Jesse  French 
Piano  &  C.  Co.,  134  Ala.  302,  307,  32 
So.  678,  92  Am.  St.  Rep.  31. 

Illinois. — World's  Columbian  Expo- 
sition Co.  v.  Brennan,  51  111.  App. 
128. 

Maryland. — In  re  Murdock,  2 
Bland.  401,  20  Am.  Dec.  381. 

Michigan. — See  Toledo  A.  A.  &  N. 
M.  R.  Co.  v.  Detroit  L.  &  M.  R.  Co., 
61  Mich.  9,  27  N.  W.  715. 

Neiv  York. — Van  Veghten  v.  How- 
land,  12  Abb.  Pr.   (N.  S.)    461. 

Pennsylvania. — The  sole  object  of  a 
preliminary  injunction  is  to  preserve 
the  subject  of  the  controversy  in  the 
condition  in  which  it  is  until  the 
merits  can  be  heard.  It  cannot  be 
used  to  take  property  out  of  the  pos- 
session of  one  party  and  put  it  in 
the  possession  of  another.  Fredericks 
v.  Huber,  180  Pa.  St.  572,  37  Atl.  90, 
citing  to  same  effect  Farmers'  Rail- 
road Co.  v.  Reno,  Oil  Creek  &  P.  Ry. 
Co.,  53  Pa.  St.  224. 

A  preliminary  injunction  is  a  re- 
strictive or  prohibitory  process,  de- 
signed to  compel  the  party  against 
whom  it  is  granted  to  maintain  his 
status  merely  until  the  matters  in 
dispute  shall  by  due  process  of  the 
courts  be  determined ;  the  sole  founda- 
tion for  such  an  order  being,  in  addi- 
tion to  cases  of  the  invasion  of  un- 
questioned right,  the  prevention  of  ir- 
reparable mischief  or  injury.     Mam- 


moth Vein  Consol.  Coal  Co.'s  Appeal, 
54  Pa.  St.  183,  188. 

South  Carolina. — The  object  of  a 
preliminary  injunction  is  to  preserve 
the  subject  of  controversy  in  the  con- 
dition in  which  it  is  when  the  order 
is  made  until  an  opportunity  is  af- 
forded for  a  full  and  deliberate  in- 
vestigation. It  cannot  be  used  to 
take  property  out  of  the  possession 
of  one  person  and  put  it  into  that  of 
another.  Pelzer,  Rodgera  &  Co.  v. 
Hughes,  27  S.  C.  408,  415.  Per  Mc- 
Gowan,  J. 

England. — Preston  v.  Luck,  L.  R. 
27  Ch.  D.  497.  Cotton,  L.  J.:  "This 
is  an  interlocutory  injunction,  the  ob- 
ject of  which  is  to  keep  things  in 
statu  quo,  so  that  if  at  the  hearing 
the  plaintiffs  obtain  a  judgment  in 
their  favor,  the  defendants  will  have 
been  prevented  meantime  from  deal- 
ing with  the  property  in  such  a  way 
as  to  make  that  judgment  ineffec- 
tual." See,  also,  Blakemore  v.  Gla- 
morganshire Canal,  1  Myl.  &  K.  154. 

An  injunction,  as  one  of  the 
provisional  remedies  of  the  New 
York  Code,  has  respect  to  the  pre- 
servation of  the  property  involved, 
pending  the  action,  and  does  not 
necessarily  affect  the  merits.  In  this 
respect  it  is  deemed  collateral  and  in- 
cidental to  the  action,  rather  than  an 
interlocutory  proceeding  in  it.  Paul 
v.  Munger,  47  N.  Y.  469,  473. 

24.  Fredericks  v.  Huber,  180  Pa. 
St.  572,  37  Atl.  90. 


196 


Classification  and  Form.  §  110 

that  it  is  preliminary  to  a  hearing  on  the  merits  and  by  no  means 
dependent  on  such  hearing.  A  permanent  injunction  may  be  had 
on  final  hearing  on  the  merits  without  the  requirement  of  a  bond 
while  a  preliminary  injunction  can  not.2D  A  preliminary  injunc- 
tion maintaining  the  status  quo,  may  properly  issue  whenever  the 
questions  of  law  or  fact  to  be  ultimately  determined  in  a  suit  are 
grave  and  difficult,  and  injury  to  the  moving  party  will  be  imme- 
diate, certain  and  great  if  it  is  denied,  while  the  loss  or  inconven- 
ience to  the  opposing  party  will  be  comparatively  small  and  insig- 
nificant if  it  is  granted.26  A  temporary  injunction  assumes  a  pend- 
ing action,  in  which  allegations  are  to  be  settled  by  judgment,  and 
that  judgment  puts  an  end  to  the  temporary  injunction,  whether 
it  grants  or  denies  a  permanent  injunction.27  And  the  temporary 
injunction  is  abrogated  by  the  final  judgment,  even  though  such 
judgment  be  appealed  from,  so  that  any  restraints,  in  addition  to 
those  of  the  temporary  injunction,  must  be  contained  in  the  final 
judgment,  or  cannot  be  granted  at  all."s  In  New  York  a  court  Las 
no  power  to  revive  or  continue  a  temporary  injunction  in  plaintiff's 
favor,  pending  an  appeal  by  him  from  a  judgment  adverse  to  him.29 

§  110.  Same  subject. — As  the  object  of  a  preliminary  or  tem- 
porary injunction  is  merely  to  preserve  the  property  in  dispute 
in  statu  quo  and  to  protect  it  from  injury  until  the  rights  of  the 
parties  can  be  finally  adjudicated,  the  court  will  not,  on  the  hear- 
ing of  an  application  to  grant  or  to  vacate  a  preliminary  injunc- 
tion, decide  questions  of  title  to  the  property  in  dispute,  but  will 
reserve  such  questions  until  the  final  hearing  upon  the  merits.30 

25.  Jesse  French  Piano  &  O.  Co.  28.  Gardner  v.  Gardner,  87  N.  Y. 
v.  Porter,   134   Ala.   302,  307,  32   So.       14. 

678,  92  Am.  St.  Rep.  31.  29.   Spears  v.  Mathews,   6C  N.  Y. 

26.  Allison  v.  Corson,  88  Fed.  581,       127. 

584,  32  C.  C.  A.  12.    Per  Sanborn,  J.  30.   Northern  Pac.   R.   Co.  v.   Spo- 

27.  Jackson  v.  Bunnell,  113  N.  Y.  kane,  52  Fed.  428.  In  many  cases, 
216,  220,  21  N.  E.  79.  the  court  will  interfere  and  preserve 

A  temporary  injunction  is  property  in  statu  </uo  during  the  pen- 
merged  in  the  perpetual.  Gage  v.  dency  of  a  suit  in  which  the  rights 
Parker,  178  111.  455,  53  N.  E.  317.  to  it  are  to  be  decided,  and  that  with- 

197 


§  110  Classification  and  Form. 

And  if  a  preliminary  order  restrains  one  of  the  parties  from  inter- 
ference with  the  property  in  dispute  and  leaves  the  other  free  so 
to  interfere,  the  court  will  modify  such  order  so  as  to  do  equal 
justice  to  the  parties,  and  keep  the  property  in  statu  quo  until  the 
determination  of  the  controversy  as  to  title  and  their  respective 
rights.31  But  where  the  defendant  is  engaged  in  removing  from 
the  complainant's  estate  that  which  constitutes  its  chief  value,  for 
instance  its  lumber,  the  case  is  one  peculiarly  within  the  province 
of  a  court  of  equity  through  its  preventive  writ  to  interpose  and 
stop  the  mischief  complained  of  and  preserve  the  property  from 
destruction.32  Before  a  court  of  equity  has  power  to  restrain  a 
libel  or  slander  the  question  of  slander  or  libel  should  first  be 
determined  by  a  jury  in  an  action  at  law,  and  after  a  verdict  for 
the  plaintiff  he  can  have  an  injunction  to  restrain  the  further  pub- 
lication of  that  which  the  jury  has  found  to  be  actionable.33  If, 
after  granting  a  temporary  injunction,  it  appears  from  defendant's 
answer  that  the  title  to  property  is  in  controversy  the  court  may 
order  the  plaintiff  to  try  that  question  in  a  court  of  law  continuing 
meanwhile  the  injunction.34  Where  a  temporary  injunction  is 
granted  on  a  prima  facie  case  made  out  by  plaintiff  it  is  proper 
to  continue  the  injunction  and  preserve  the  status  quo  where  the 

oTlt    expressing,    and    often    without  the  court  may  in  its  discretion  issue 

having     the     means    of    forming    an  a  temporary  injunction  and  continue 

opinion  as  to  such  rights.    Huffman  v.  it  in  force  for  such  a  time  as  may  be 

Hummer,  17  N.  J.  Eq.  263;  New  Jer-  necessary  to  enable  the  orator  to  es- 

sey    Zinc    Co.    v.    Trotter,    38    N.    J.  tablish  his  title  in  a  court  of  law  and 

Eq.  7.  may    make   the    injunction    perpetual 

As  to  divesting  party   of  pos-  when  the  orator  has  thus  established 

session,  see  §   112  herein.  his  title;   or  the   court  may   proceed 

31.  Northern  Pac.  R.  Co.  v.  Spo-  and  determine  which  party  has  the 
kane,  52  Fed.  428.  better   title;    or   it  may   dismiss   the 

32.  Griffith  v.  Hilliard,  64  Vt.  643,  bill  and  leave  the  orator  to  his  legal 
25  Atl.  427.  remedy.    Bacon  v.  Jones,  4  Myl.  &  C. 

33.  Flint  v.  Hutchinson  Smoke  433;  Duke  of  Beaufort  v.  Morris,  6 
Burner  Co.,  110  Mo.  492,  19  S.  W.  Hare,  340;  Campbell  v.  Scott,  11 
804.  Sim.    31;     Ingraham    v.    Dunnell,    5 

34.  Griffith  v.  Hilliard,  64  Vt.  643.  Met.  118;  Rooney  v.  Soule,  45  Vt. 
25  Atl.  427,  per  Start,  J.:  "When  303;  Wing  v.  Hall,  44  Vt.  118;  Lyon 
it  appears  that  the  title  is  in  dispute      v.  McLaughlin,  32  Vt.  423;  Hastings 


198 


Classification  and  Form.  §§  110a,  111 

injury  to  plaintiff  from  defendant's  acts  would  be  much  greater 
than  the  defendant  could  suffer  from  being  enjoined.35 

§  110a.  Injunction  by  order  in  New  York. — An  injunction  by 
order  in  New  York  is  held  to  be  a  provisional  remedy  and  tem- 
porary in  its  character.  It  assumes  a  pending  litigation  in  which 
all  questions  are  to  be  settled  by  a  judgment,  and  operates  only 
until  that  judgment  is  rendered.  If  by  that  a  permanent  injunc- 
tion is  granted,  the  temporary  one  is  ended  which  is  also  the  case 
if  the  permanent  injunction  is  denied.36 

§  111.  Interim  restraining  orders;  generally. — The  function  of 
a  restraining  order  is  to  protect  the  plaintiff  without  unnecessarily 
oppressing  or  annoying  the  defendant,  and  will  therefore  be  framed 
according  to  the  circumstances  of  the  particular  case.37  A  restrain- 
ing order  is  not  intended  to  have  the  force  and  effect  which  attaches 
to  an  injunction  when  regularly  allowed.  Such  an  order  restrains 
proceedings  until  an  opportunity  can  be  given  for  the  parties  to 
be  heard  and  upon  the  hearing  having  been  had  and  a  decision 
rendered  upon  the  application  the  restraining  order  ceases  by  its 
own  limitation.35  A  restraining  order  is  limited  in  its  operation 
and  extends  only  to  such  reasonable  time  as  may  be  necessary  to 
have  a  hearing  on  an  order  to  show  cause  why  an  injunction  should 
not  issue.39  And  in  this  connection  it  is  said  that  it  is  the  plain 
duty  of  a  court  to  set  the  order  to  show  cause  at  a  very  early  day, 

v.  Perry,  20  Vt.  278;  Barnes  v.  Dow,  nee  &  S.  P.   R.  Co.    (Fla.   1905),  39 

59  Vt.  530,  10  Atl.  258;  Barry  v.  Har-  So.  538. 

ris,  49  Vt.  392."  39.  Wetzstein  v.  Boston  &  Montana 

35.  Cornwall  v.  Saches,  69  Hun  (N.  C.  C.  &  S.  M.  Co.,  25  Mont.  135,  63 
Y.),283.  Pac.    1043.      Per   Milburn,   citing   10 

36.  Jackson  v.  Bunnell,  113  N.  Y.  Encyc.  PI.  &  Prac.  878;  College  Cor 
216,  220,  21  N.  E.  79.     Per  Finch,  J.  ner  Road  Co.  v.  Moss,  77  Ind.   139; 

37.  Kirby  MTg  Co.  v.  White,  I  Hicks  v.  Michael,  15  Cal.  107;  San 
Fed.  604.  Diego  Water  Co.  v.  Pacific  Coast  S. 

38.  State  v.  Wakely,  28  Neb.  431.  S.  Co.,  101  Cal.  216,  35  Pac.  651; 
quoted  in  State  v.  Greene,  48  Neb.  Fennick  Hall  Co.  v.  Town  of  Old  Say 
327,  331,  67  N.  W.  162.     See  Suwan  hook.    66    Fed.    389;     Strickland     v. 

Griffin,  70  Ga.  541. 

199 


§  111  Classification  and  Form. 

and,  upon  the  application  of  the  defendant  to  shorten  the  time,  to 
the  end  that,  if  the  facts  on  the  hearing  warrant  it,  the  restraining 
order  may  be  discharged.40  The  fact  that  an  unauthorized  restrain- 
ing order  is  made  by  the  judge  in  the  notice  of  hearing  of  an  appli- 
cation for  an  injunction,  does  not  make  it  error  to  issue  a  tem- 
porary injunction  on  the  hearing.41  Whether  the  character  and 
function  of  a  writ  rcstaining  the  parties  to  an  action  from  doing 
certain  things,  issued  at  its  commencement,  are  those  of  a  tem- 
porary order  of  injunction,  or  a  temporary  restraining  order,  must 
be  determined  by  the  form  and  substance  of  the  order  so  issued.42 
And  a  restraining  order  granted  on  the  ground  of  emergency  and 
until  a  day  certain  when  cause  must  be  shown  why  a  temporary 
injunction  should  not  issue  is  not  an  "  injunction  or  restraining 
order  "  within  the  meaning  of  a  statute  providing  that  an  "  injunc- 
tion or  restraining  order  "  may,  on  appeal  by  the  complainant,  be 
kept  in  force  by  the  giving  of  a  bond  by  the  latter,  where  it  is  clear 
that  the  words  "injunction"  and  "restraining  order"  as  used 
in  the  statute  were  substantially  synonymous.43  A  restraining 
order  or  interim  injunction  becomes,  on  the  denial  of  a  motion  to 
vacate  it,  a  temporary  injunction.44    And  in  the  Ann  Arbor  case 

40.  Wetzstein  v.  Boston  &  Mon-  injunction,  as  known  to  the  common 
tana  C.  C.  &  S.  M.  Co.,  25  Mont.  135,  law.  if  it  saw  fit  to  do  so,  and  that 
63  Pac.  1043.  Per  Milburn,  J.  In  if  it  did  not  see  fit  to  go  into  all 
this  case  it  was  held  an  abuse  of  dis-  the  formalities  required  by  the  use  of 
cretion  to  stay  the  hearing  on  the  such  a  writ,  it  could  accomplish  the 
order  for  a  period  of  six  weeks  from  same  purpose  by  issuing  a  simple 
the  time  it  was  granted.  order  restraining  the  acts  complained 

41.  Lemmon   v.   Town    of    Guthrie       of."     Per  Hoyt,  J. 

Center,  113  Iowa,  36,  84  N.  W.  986,  44.  Smith  v.    Cuyler,   78  Ga.   654, 

86  Am.  St.  Rep.  381.  3  S.  E.  406.    When  an  order  restrains 

42.  State  v.  Baker,  62  Neb.  840,  88  a  defendant  from  doing  certain  acts 
N.  W.   124.  until  the  further  order  of  the  court, 

43.  State  v.  Lichtenberg.  4  Wash.  and  also  requires  him  to  show  cause 
407,  409,  30  Pac.  716,  wherein  it  was  at  special  term  why  such  injunction 
said  that  it  seemed  to  the  court  "that  should  not  be  continued  until  the 
the  Legislature,  in  speaking  of  in-  final  determination  of  the  acion,  it 
junctions  and  restraining  orders,  is  not  necessary  to  have  an  additional 
meant  to  use  terms  which  would  order  to  continue  the  injunction,  for 
make  it  proper  for  the  court  to  put  unless  dissolved  on  defendant's  mo- 
its  order   in  the  shape  of   a   formal  tion  therefor  with  notice  to  plaintiff 

200 


Classification  and  Form.  §  Ilia 

to  restrain  violations  of  the  Interstate  Commerce  Law  there  was  a 
temporary  restraining  order  which  at  length  became  a  temporary 
injunction.45 

§  Ilia.  Interim  restraining  orders;  in  particular  jurisdictions. 

— In  North  Carolina  a  restraining  order  may  be  granted  ex  parte 
in  urgent  cases  and  cannot  last  more  than  twenty  days.46  In 
Georgia  it  has  been  decided  that  where  it  is  manifest  to  the  judge, 
from  sworn  allegations  of  the  bill,  or  the  affidavit  of  a  competent 
person,  that  the  injury  apprehended  will  be  done  if  an  immediate 
remedy  is  not  afforded,  he  may  grant,  instarder,  an  order  restrain- 
ing the  party  complained  of  until  the  hearing  or  the  further  order 
of  the  court,  which  restraining  order  shall  have  the  force  of  an 
injunction,  until  rescinded  or  modified  by  the  court.47  Under  sec- 
tion 718  of  the  Revised  Statutes  of  the  United  States  if  a  bill  is  filed 
for  an  injunction  and  a  subpoena  issued  notifying  a  defendant  to 
appear  on  a  rule  day,  and  in  the  meantime  there  is  danger  that 
irreparable  injury  may  be  committed,  the  court  in  the  exercise  of  a 
sound  discretion  may  grant  a  temporary  restraining  order  without 
notice  until  the  decision  upon  the  motion  for  the  preliminary 
injunction.48  In  English  practice  instead  of  issuing  an  injunction 
the  court  may  issue  an  interim  order  restraining  the  defendant 
until  after  a  particular  day  named,  with  liberty  to  plaintiff  to 
serve  notice  of  motion  for  an  injunction  for  the  day  before  such 
day.49  In  New  York  when  an  application  for  an  injunction  is 
made  upon  notice,  or  an  order  to  show  cause,  the  defendant  may 

it  will  continue  until  such  final  de-  46  Fed.  546.  Under  the  Act  of  Con- 
termination  of  the  action.  Kelly  v.  gress  of  1793  sucn  a  restraining  order 
Jeroloman,  7  Robt.  158.  could  not  be  granted  without  notice, 

45.  Toledo,  etc.,  R.  Co.  v.  Penn-  but  that  act  was  changed  by  section 
eylvania  Co.,  54  Fed.  730.  See,  also,  7  of  the  Act  of  June  1,  1872,  now 
Byam  v.  Cashman,  78  Cal.  525,  21  §  712,  U.  S.  R.  S.  See,  also,  Chi- 
Pac.  113.  cago,    etc.,   R.   Co.    v.    Burlington    R. 

46.  N.  C.  Code,  §  346;  Hamilton  Co.,  34  Fed.  481;  Central  Trust  Co. 
v.  Icard,  112  N.  C.  589,  17  S.  E.  519.  v.  Wabash  R.  Co.,  25  Fed.  1. 

47.  Strickland  v.  Griffin,  70  Ga.  49.  Kerr,  Injunctions,  28  Gold- 
543.  smid  v.  Croft,  4  Week.  Rep.  450. 

48.  Payne  v.  Kansas,  etc.,  R.  Co., 

201 


§  112  Classification  and  Form. 

be  enjoined  until  the  hearing  and  decision  of  the  application;50 
and  in  such  a  case  security  may  be  required  of  plaintiff  as  on  the 
granting  of  a  temporary  injunction,01  and  if  such  security  is 
deemed  to  be  sufficient  on  the  granting  of  the  temporary  injunc- 
tion no  new  undertaking  will  then  be  required.52  In  Nebraska  a 
temporary  restraining  order  may  be  allowed  to  protect  the  rights 
of  the  plaintiff  prior  to  the  granting  of  the  temporary  injunction, 
but  it  is  so  transitory  as  not  to  have  within  itself  the  elements  neces- 
sary for  its  continuance,  and  ceases  upon  a  decision  either  granting 
or  refusing  the  temporary  injunction.53  It  is  expressly  provided 
by  the  Kansas  statute  that  an  injunction  shall  not  be  granted 
against  a  party  who  has  answered,  unless  upon  notice,  but  such 
party  may  be  restrained  until  the  decision  of  the  application 
therefor.54 

§  112.  Invalid  preliminary  injunctions. — The  legitimate  pur- 
pose and  function  of  a  temporary  or  preliminary  injunction  is  to 
preserve  matters  in  statu  quo  until  a  hearing;  if  it  undertakes 
or  if  its  effect  is  to  dispose  of  the  merits  of  a  controversy  without 
a  hearing,  or  if  it  divests  a  party  of  his  possession  or  rights  in 
property  without  a  trial,  it  is  void.55    Thus  where  a  railway  com- 

50.  Code  Civ.  Pro.,  §  609;  Babcock  and  a  decision  rendered  upon  the  ap- 
v.  Clark,  23  Hun  (N.  Y.),  391;  Daly  plication,  the  whole  force  of  the  re- 
v.  Amberg,  126  N.  Y.  490,  27  N.  E.  straining  order  ceases  by  its  own  lim- 
1038.  itation." 

51.  Methodist  Churches  v.  Barker  54.  Gen.  Stats.  1889.  §  4336;  G. 
18  N.  Y.  463;  Byam  v.  Cashman,  78  S.  1868.  ch.  80,  §  241. 

Cal.  525,  21  Pac.  113.  55.  United  States.— Southern  Pae. 

52.  Preiss    v.     Cohen,    112    N.    C.       R.  Co.  v.  Oakland,  58  Fed.  50. 

278,   17   S.  E.  520.  Louisiana.— New  Orleans  &  N.  E. 

53.  State  v.  Wakeley,  28  Neb.  431,  R.  Co.  v.  Mississippi,  T.  &  L.  R.  Co., 
4*  N.  W.  488,  per  Reese,  C.  J.:     "It       36  La.  Ann.  561. 

is   very   clear   that    the     Legislature  Michigan. — Arnold     v.     Bright,    41 

never  intended  to  give  the  force  and  Mich.  207,  2  N.  W.  16. 

effect   to   a   restraining   order   which  Mississippi. — Martin  v.  Broadus,  1 

attaches  to  an  injunction  when  reg-  Freem.   Ch.  35. 

ularly   allowed.     It  simply   suspends  Nebraska. — Calvert     v.     State,    34 

proceedings  until  an  opportunity  can  Neb.  216,  52  N.  W.  687. 

be  given  for  hearing  the  parties;  and  New      York. — Deklyn      v.      Davis, 

upon  that  hearing  having  been  had,  Hopk.  Ch.   135. 

202 


Classification  and  Form.  §  113 

pany  had  been  in  possession  of  a  yard  for  making  up  its  trains  for 
more  than  twenty  years,  a  temporary  injunction  which  restrained 
it  from  preventing  the  occupation  of  the  yard  by  a  street  railway 
company  was  held  to  be  not  merely  illegal  but  absolutely  void.56 
And  an  ex  parte  interlocutory  injunction  which  deprives  railroad 
directors  of  control  may  be  more  than  irregular  and  wholly  void  as 
beyond  the  power  of  the  court.57 

§  113.  Injunction  against  plaintiff. — In  New  York  a  defendant 
who  interposes  a  counterclaim  and  demands  an  affirmative  judg- 
ment against  plaintiff  has  the  same  right  to  an  injunction  against 
him  as  he  would  have  in  an  action  for  the  same  cause  of  action,  and 
in  which  he  demanded  the  same  judgment.58  But  to  entitle  the  de- 
fendant to  an  injunction  his  answer  must  really  amount  to  a  coun- 
terclaim in  a  matter  susceptible  of  counterclaim,  within  the  meaning 
of  the  Code.59  In  England,  a  defendant  may  before  judgment  apply 
for  an  injunction  against  a  plaintiff  who  has  already  served  notice 
of  motion  for  the  same  purpose;  in  such  case  one  order  will  be 
made  on  the  tried  motions,  but  the  conduct  of  the  proceedings  will 
generally  be  given  to  plaintiff  as  the  party  first  instituting  the  pro- 

Pennsylvania. — Farmers'  R.  Co.  v.  W.  16,  See,  also,  People  v.  Simon- 
Reno  O.  C.  &  P.  R.  Co.,  53  Pa.  St.  son.  10  Mich.  335;  Sailing  v.  John- 
224.  son,  25  Mich.  489;  McCombs  v.  Mer 

Rhode  Island. — Jenckes  v.  Cooke,  8  ryhew,  40  Mich.  725;  Tawas,  etc.,  R. 

R.  I.  336.  Co.  v.  Iosco  Judge,  44  Mich.  479,  7 

South    Carolina. — Columbia    Water  N.  W.  65. 

Power  Co.  v.  Columbia,  4  S.  C.  388.  56.  Calvert  v.  State,  34  Neb.  616, 

South      Dakota.— Catholicon      Hot  52   N.   W.  687,  per  Maxwell,  C.  J.: 

Springs  Co.  v.  Ferguson.  7  S.  D.  503.  "  The  question  of  the  street  railway's 

fi4  N.  W.  539.  right  to  appropriate  the  property  in 

Vermont. — Cheever    v.    Rutland    &  question  should  have  been  determined 

B.  R.  Co..  39  Vt.  653.  by  a  trial  before  the  order  in  ques- 

"  The    court    of    chancery    has  tion  was  made,  and  as  it  was  not  the 

no   more   power  than   any   other  judge    acted    without    authority    and 

to   condemn    a   man   unheard   and   to  the   order   is   void." 

dispossess    him     of     property    prima  57.  Port    Huron,    etc.,    R.    Co.    v. 

facie    his   and   to   hand   over   its   en-  Judge.  31  Mich.  456. 

joyment  to  another  on   an  ex  parte  58.  Code  Civ.  Pro.,  §  720. 

claim  to  it."     Per  Cooley.  J.,  in  Ar-  59.  Glen    MTg    Co.     v.     Hall,     6 

nold  v.   Bright.   41    Mich.   207.   2  N.  Lans.  158. 

203 


§  114  Classification  and  Fokm. 

ceedings.60  The  defendant  waives  the  objection  that  plaintiff  has 
an  adequate  remedy  at  law  by  filing  a  cross-bill,  and  where,  instead 
of  pleading  want  of  jurisdiction,  he  merely  protests  against  it  and 
asks  affirmative  equitable  relief.61 

§  114.  Form  and  contents  of  injunction  order. — Under  the 
Kew  York  statute  the  injunction  order  must  briefly  recite  the 
grounds  for  the  injunction;62  an  omission  so  to  state  the  grounds 
is  not  a  jurisdictional  defect,  and  though  it  is  an  irregularity  for 
which  the  injunction  may  be  set  aside,  if  it  does  not  prejudice 
any  substantial  right  of  defendant  it  may  be  disregarded  or  sup- 
plied under  section  723  of  the  Code.63  The  order  does  not  suf- 
ficiently recite  the  grounds  for  the  injunction,  by  merely  reciting 
the  language  of  the  Code  to  the  effect  that  it  appears  by  the  com- 
plaint that  the  plaintiffs  demand,  and  are  entitled  to  judgment 
against  the  defendant  restraining  the  commission  or  continuance 
of  an  act  which  during  the  pendency  of  the  action  would  produce 
injury  to  plaintiff.64  The  direction  as  to  the  giving  of  the  under- 
taking required  by  §  620  of  the  New  York  Code  need  not  be 
embodied  in  the  order.65  The  injunction  should  not  go  beyond  the 
allegations  of  the  complaint  or  the  prayer  for  relief  so  as  to  give 
plaintiff  greater  relief  than  he  is  entitled  to  ;66  but  such  an  order 
though  irregular  is  not  necessarily  void  and  cannot  be  violated 

60.  Sargant  v.  Read,  L.  R.  1  Ch.  right  or  remedy  of  plaintiff.  If  the 
D-  60°-  papers    on   which   the   injunction     is 

61.  Sale  v.  McLean.  29  Ark.  612;  granted  contain  facts  showing  that 
Snowden  v.  Tyler,  21  Neb.  199.  such  would  be  the   result,  it  is  suf- 

62.  Code  Civ.  Pro.,  §  610.  ficient.  and  it  is  not  necessary  to  re- 

63.  Atlantic  Tel.  Co.  v.  Baltimore,  cite  the  words  of  the  statute  ipsis- 
etc  R.  Co.,  46  N.  Y.  Super.  Ct.  377,  simis  verbis.  Prince  M'f'g  Co.  v. 
409;  Phoenix  Foundry  v.  North  Riv.  Prince's  Metallic  Paint  Co.,  4  N.  Y. 
Construction  Co.  6  N.  Y.  Civ.  Pro.  Supp.  348,  51  Hun.  443;  Hotchkiss  v. 
106»    112.  Hotchkiss,   50  Hun,   604,   2   N.   Y.   S. 

64.  Hotchkiss  v.  Hotchkiss,  19  N.  Y.  825,    16   Civil   Proc.   Rep.    129. 

St.  767.  50  Hun,  604,  2N.Y.  Supp.  825,  65.  Manley   v.    Leggett,    17   N.    Y. 

It  is  not  necessary  t  >  insert  in  an  in-  Supp.  68. 

junction  a  declaration  that  the  con-  66.  Loomis  v.  Thirty-Fourth  Street 

duct  of  defendant  is  such  as  to  de-  R.  Co.,  38  Hun.  517;  Burdett  v.  Hay, 

feat,  impair,  impede,  or  prejudice  a  33  L.  J.  Ch.    (N.  S.)    41. 


204 


Classification  and  Form. 


§114 


with  impunity.67  Where  the  case  made  by  the  bill  was  confined  to 
the  erection  and  operation  of  coke  ovens  on  a  specified  street,  the 
injunction  decree  was  held  to  be  improvident  because  it  included 
ovens  not  upon  that  street.68  And  where  defendant  was  enjoined 
from  using  an  oblong  form  of  package  adopted  by  plaintiff  the 
injunction  was  held  too  broad  since  it  prevented  defendant's  using 
such  a  form  though  destitute  of  the  distinguishing  marks  and 
devices  of  plaintiff's  package,  and  the  injunction  was  therefore 
modified  by  the  New  York  Court  of  Appeals  so  as  to  conform  to 
the  pleadings  and  proofs.69    A  mandatory  injunction  must  not  go 


67.  Mayor,  etc.,  v.  Staten  Island 
Ferry  Co.,  64  "hi.  Y.  622;  People  v. 
Sturtevant,  9  N.  Y.  263;  Richards  v. 
West,  2  Green  Ch.  456.  See  Leitham 
v.  Cusick,  1  Utah,  242. 

68.  Rainey  v.  Herbert,  55  Fed. 
443. 

69.  Fischer  v.  Blank,  138  N.  Y. 
248,  33  N.  E.  1U0,  where  Maynard, 
J.,  said :  "  We  think  the  interlocu- 
tory judgment  recovered  in  this  ac- 
tion is  too  comprehensive  in  its  scope. 
Some  of  its  provisions  are  not  au- 
thorized by  the  pleadings,  proofs  and 
findings.  a9  they  must  be  construed 
and  applied  under  the  rules  of  law 
which  prevail  in  this  class  of  cases. 
The  injunction  granted  restrains  de- 
fendant from  making  use  of  the  form 
of  package  adopted  by  plaintiffs,  and 
from  using  the  name  'Black  Package 
Tea '  in  the  sale  of  tea  not  selected 
and  put  upon  the  market  by  plain- 
tiffs. The  plaintiffs  have  no  propri- 
etary right  to  this  form  of 
package  and  are  not  entitled  to  its 
exclusive  use.  .  .  .  The  use  of 
such  a  name  in  connection  with  the 
particular  form,  style,  color  and  em- 
bellishment of  package  set  out  in  the 
complaint  and  findings  might  prop- 
erly be  restrained.  Probably  it  was 
only  to  this  extent  that  the  injunc- 


tion was  intended  to  go,  but,  as  it 
stands,  it  enjoins  the  defendant  from 
using  the  name  generally,  and  a 
prohibition  so  unrestricted  is  not 
permissible.  The  injunction  is  also 
too  broad  in  the  restraint  which  it 
imposes  upon  tne  defendant  in  the 
use  of  the  circular  disks  upon  which 
is  printed  the  quality  of  the  tea,  the 
quantity  and  price,  and  the  words,  in 
Russian,  'Genuine  Russian  Tea,' 
which  are  similar  in  form,  color,  and 
general  appearance  to  the  disks  used 
upon  plaintiff's  packages,  except  that 
the  latter  have  upon  them  the  Rus- 
ian  words  for  '  Russian  Caravan  Tea.' 
The  defendant  is  prohibited  from  the 
use  of  these  disks  upon  any  kind  of 
a  package,  when  the  injunction 
should  have  been  limited  to  the 
packages  described  in  the  complaint 
and  findings.  The  same  objection  ex- 
ists but  with  greater  force,  to  the  re- 
tention of  that  part  of  the  judgment 
which  absolutely  forbids  the  use  of 
the  defendant's  diamond-shaped  busi- 
ness label,  which  has  upon  it  only 
his  name,  occupation,  and  place  of 
business.  There  can  be  no  grounds 
upon  which  its  use  by  the  defendant 
may  be  inhibited,  except  upon  the 
packages  described  in  the  complaint. 
Elsewhere  in  his  business  these  labels 


205 


§115 


Classification  and  Form. 


beyond  the  relief  demanded  by  the  applicant,  and  must  bo  clear 
and  definite  in  its  requirements,  or  it  will  be  void  for  uncertainty .w 

§  115.  Injunction  order  to  be  specific. — The  injunction  order 
should  plainly  indicate  to  the  defendant  the  specific  acts  which 
he  is  restrained  from  doing  or  commanded  to  do,  without  calling 
upon  him  for  inference,  or  conclusions  to  be  reached  only  by  a 
process  of  reasoning;  in  other  words,  it  must  be  explicit  in  its 
terms,  clearly  pointing  out  and  describing  each  distinct  thing  the 
defendant    is    required    to    do    or    not    to    do.71      It    has    been 


may  be  freely  and  lawfully  used."  An 
injunction  to  restrain  infringement 
of  a  copyright  should  be  limited  to 
that  part  of  the  defendant's  publica- 
tion which  infringes.  Farmer  v. 
Elstner,  33  Fed.  494.  In  Rose  v. 
Rose,  11  Paige  (N.  Y.),  166.  an  in- 
junction on  a  bill  for  divorce  was 
held  too  broad  which  restrained  de- 
fendant from  using  his  property  for 
the  necessary  support  of  himself  and 
children  or  from  using  his  tools  of 
trade  and  from  carrying  on  his  or- 
dinary business  and  was  therefore 
dissolved.  An  injunction  should  not 
be  broader  than  the  grievance  com- 
plained of,  and  if  so  will  be  modi- 
fied on  appeal.  Marble  Company  v. 
Ripley,  10  Wall.  (U.  S.)  339;  Stroub 
v.  Manhattan  R.  Co.,  59  N.  Y.  Super. 
Ct.  505,  511. 

70.  McKenzie  v.  Ballard,  14  Col. 
426,  24  Pac.  1,  Elliott,  J.:  "Ap- 
pellant complains  with  much  reason 
of  the  order  of  the  court  requiring 
defendant  'to  build  sluices  for  ir- 
rigating water  wherever  necessary.' 
There  is  nothing  in  the  complaint  re- 
lating to  sluices.  The  answer  con- 
tains nothing  in  reference  to  them, 
and  asks  for  no  affirmative  relief, 
except  it  be  by  the  prayer  for  general 
relief."      A    writ   enjoining   a    party 


from  unlawfully  selling  intoxicating 
liquors  upon  certain  premises  de 
scribed  as  "  part  of  lot  No.  2,  in 
the  N.  E.  quarter  of  the  N.  W.  quar- 
ter of  section  23,"  etc.,  is  not  void 
for  uncertainty,  in  not  specifying  the 
particular  building  or  place  intended. 
Granger  and  Robinson,  JJ.,  dissent- 
ing. Ver  Straeten  v.  Lewis.  77  Iowa. 
130,  41  N.  VV.  594. 

71.  Lyon  v.  Botchiord,  25  Hun 
(N.  Y.),  57;  Laurie  v.  Laurie,  9 
Paige  (N.  Y.),  234.  Injunctions 
should  be  clear  and  certain  in  their 
terms,  so  that  the  parties  upon  whom 
they  are  served  may  readily  know 
what  they  can  or  cannot  do  under 
them.  A  prohibition  against  carry 
ing  on  "  said  business  "  in  a  certain 
way,  was  limited  by  construction  to 
the  particular  part  of  the  business 
complained  of,  whicn  was  described 
in  the  same  paragraph.  Baldwin  v. 
Miles,  58  Conn.  496,  20  Atl.  618.  An 
injunction  should  contain  sufficient 
information  upon  its  face  to  apprise 
the  party  upon  whom  it  is  served 
what  he  is  restrained  from  doing, 
without  the  necessity  of  resorting  to 
the  complainant's  bill  to  ascertain 
what  the  injunction  means.  Sulli 
van  v.  Judah,  4  Paige   (N.  Y.),  444. 


206 


Classification  and  Poem. 


§116 


decided  in  Kansas  that  if  an  injunction  is  plain  and  explicit  in 
restraining  the  defendant  from  the  acts  complained  of,  it  is  not 
void  by  reason  of  its  awkward  and  inaccurate  recitals,  nor  because 
the  verification  of  the  injunction  petition  is  of  doubtful  suf- 
ficiency ;72  but  if  it  restrains  defendant  from  doing  acts  not  recited, 
nor  referred  to  in  the  injunction  petition,  it  will  be  void.73 


§  116.  Settling  and  correcting  form  of  permanent  injunction. 
— The  form  of  an  injunction  decree  or  judgment  should  be  dis- 
cussed and  settled  at  the  time  it  is  signed  by  the  judge ;  if  defective, 
it  should  be  brought  to  his  notice  on  a  motion  for  resettlement,  and 
it  cannot  thereafter  be  substantially  varied  without  a  rehearing.74 


72.  State  v.  Pierce,  51  Kan.  241, 
32  Pac.  924,  where  the  court  said: 
"  The  order  of  injunction  itself  is  at- 
tacked as  a  nullity.  The  order  starts 
out  by  reciting  that  an  application 
was  presented  to  the  probate  judge 
of  Barber  county,  and  that  it  was 
shown  that  the  district  judge  was 
absent  from  the  county.  Then  fol- 
lows an  order  of  injunction,  restrain- 
ing the  defendant  and  other  members 
of  the  board  of  county  commission- 
ers, from  doing  certain  acts,  to  pre- 
vent the  doing  of  which  said  injunc- 
tion case  was  commenced,  and  this 
order  was  signed,  '  G.  W.  McKay, 
District  Judge  of  Barber  County, 
Kansas.'  The  recitals  contained  in 
the  order  are,  to  say  the  least,  very 
awkward.  The  order  appears  to  have 
been  prepared  to  be  issued  by  the  pro- 
bate judge,  but  it  was  in  fact  made 
by  the  district  judge.  We  think, 
however,  these  recitals  are  not  an  es- 
sential part  of  the  order.  The  com- 
mand restraining  tne  defendant  from 
doing  the  acts  mentioned  in  the  order 
is  explicit.  We  cannot  say  that  the 
defendant  might  obey  or  disregard  it, 
as  he  saw  fit.  If  the  proceedings  in 
the   injunction   case   were   erroneous: 


the  defendant's  remedy  was  to  have 
applied  to  the  District  Court  of  Bar- 
ber county,  or  the  judge  thereof,  to 
dissolve  the  injunction,  and  if  errors 
were  still  committed  by  that  court  or 
judge,  the  defendant  had  ample  rem- 
edy by  proceedings  here.  It  is  claimed 
that  the  affidavit  to  the  petition  for 
injunction  was  not  signed  by  the 
plaintiff  or  his  agent,  but  by  a 
stranger  to  the  record.  It  is  true  that 
it  was  not  signed  by  the  county  at- 
torney but  by  one  Charles  W.  Pease, 
whose  relation  to  the  case  does  not 
appear.  We  do  not  deem  it  neces- 
sary to  decide  whether  this  was  a 
sufficient  verification  of  the  petition 
for  the  purposes  of  granting  an  in- 
junction, but  we  do  hold  that  the 
order  of  injunction  was  not  void,  be- 
cause of  a  defective  affidavit.  It  was, 
at  most,  erroneous  for  the  district 
judge  to  issue  the  injunction,  and  the 
error,  if  any,  could  only  be  corrected 
by  a  proper  proceeding  in  that  action. 
The  defendant  could  not  treat  the  or- 
der of  injunction  as  absolutely  void, 
for  that  reason." 

73.  State  v.  Rush  County  Com'rs. 
35  Kan.  150,  10  Pac.  535. 

74.  Gerber  v.  Metropolitan  El.  R. 


207 


Sue 


Classification  and  Foem. 


According  to  the  former  chancery  practice,  the  decree  might  be 
corrected  on  motion  as  to  mere  clerical  errors,  or  by  the  insertion  of 
any  provision  or  direction  which  would  have  been  inserted  as  mat- 
ter of  course,  if  it  had  been  asked  for  at  the  hearing,  as  a  necessary 
or  proper  clause  to  carry  into  effect  the  decision  of  the  court.75 
If  the  judgment  is  objectionable  in  form,  the  defendant 
should,  if  he  has  an  opportunity,  object  to  it,  and  then,  if 
necessary,  make  a  motion  in  the  court  below  to  correct  it ; 
if  this  motion  is  denied,  an  appeal  will  lie,  but  an  appeal 
without    making    such    motion    is    not    the    proper    remedy.76 


Co..  23  N.  Y.  Supp.  166.  See,  also, 
Union  Nat.  Bank  v.  Kupper,  63  N.  Y. 
617;  Kraushaar  v.  Meyer,  72  N.  Y. 
602 ;  Beers  v.  Shannon,  73  N.  Y.  292, 
297. 

75.  Clark  v.  Hall,  7  Paige  (N. 
Y.),  382;  Sprague  v.  Jones,  9  Paige 
(N.    Y.),   395.      See,    also,    Sperb   v. 


Metropolitan  El.  R.  Co.,  44  N.  Y. 
St.  Rep.  216,  where,  the  facts  having 
been  fully  found  it  was  held  that  an 
error  might  be  cured  by  modifying 
the  judgment  to  conform  to  them. 

76.  Simmons  v.   Craig,   137   N.  Y. 
550,  33  N.  E.  76. 


208 


Geanting  of  Injunctions. 


CHAPTER  IV. 

The    Geanting    of     Injunctions;    Application;    Notice; 

Service. 

Section  117.  Judicial  discretion  in  respect  to  injunctions. 

118.  Sound   discretion   considered. 

119.  Discre  -ion  as  affected  by  statutes. 

120.  No  discretion  in  cases  of  torts. 

121.  Abuse  of  discretion  in  granting  injunctions. 

122.  Discretion  not  to  be  forced  Dy  mandamus. 

123.  Continuance  of  injunctions. 

124.  Notice  of   application — Necessity  of. 

125.  Same   subject  continued. 

126.  Same   subject — Rule   in  New   York. 

126a.  Same  subject — Where  injunction  operates  to  suspend  general 

business  of  corporation. 
126b.  Same  subject — Statutes  as  to  length  of  time  for  which  notice 

must  be  given. 
126c.  Same  subject — Waiver  of  notice. 
126d.  Same    subject — Qualification    of    rule — Statutes. 

127.  Notice — Perpetual  injunctions. 

128.  Application  on  what  made. 

129.  Same  subject — Federal   practice. 

130.  Motions  for   temporary   injunction. 

131.  New  York  injunctions  formerly  on  petition. 

132.  Special  prayer  for  injunction. 

133.  Temporary    injunction    pending   an  action   for   a   permanent. 

134.  Temporary  injunction  for  extrinsic  cause. 

135.  Same  subject. 

136.  Affidavits. 

137.  Conflicting  affidavits,  etc. 

138.  Substitute  for  affidavits. 

139.  Additional  evidence — secondary  evidence. 

140.  Granting  injunction   before  bill  filed. 

141.  Same   subject. 

142.  Same  subject — Alabama  rub. 

143.  Granting  injunction  on  bill  filed — Chancery  practice. 
143a.  Where  answer  denies  facts  alleged  in  bill. 

144.  Granting  injunction  in  spite  of  answer. 

145.  Verification  of  bill. 

146.  Verification  of  bill  in  New  Jersey. 

147.  Same  subject — Maryland  rule. 

209 
14 


§  117 


(jkantinu  of   Injunctions. 


Section  148.  Verification  in  Georgia  and  South  Carolina. 

149.  Verification — Federal   practice. 

150.  Allegations  on   information   and   belief. 

151.  Service  of   injunction. 

151a.  Party  enjoined  out  of  State — Mode  of  service. 
152     Subpoenas — Service  of. 
152a.  Substituted    service. 

153.  Temporary   injunctions  by   whom  granted. 

154.  Granting  on   Sunday  and  holidays  or   in  vacation. 

155.  Second   injunctions. 

156.  Injunction  against  parties  only — Exception. 

157.  Subsequent  applications — Bar  to. 


Section  117.  Judicial  discretion  in  respect  to  injunctions.- 

The  granting  or  refusing  of  a  temporary  injunction  rests  in  the 
sound  discretion  of  courts  of  original  jurisdiction.1     And  an  in- 


1.  United  States. — Buffington  v. 
Harvey,  95  U.  S.  99,  24  L.  Ed.  381; 
King  v.  Willimason,  80  Fed.  170.  25 
C.  C.  A.  355,  42  U.  S.  App.  393; 
Louisville  Trust  Co.  v.  Cincinnati  In- 
clined P.  R.  Co.,  78  Fed.  307;  McCoy 
v.  Marietta  &  C.  R.  Co.,  Fed.  Cas.  No. 
8730b. 

California. — Coolot  v.  Central  Pac. 
R.  Co.,  52  Cal.   65. 

Connecticut. — Phoenix  Ins.  Co.  v. 
Carey  (Conn.  1908),  68  Atl.  893. 

Florida. — Suwannee  &  S.  P.  R.  Co. 
v.  West  Coast  Ry.  Co.  (Fla.  1905), 
39  So.  538;  Swepson  v.  Call,  13  Fla. 
337. 

Georgia. — Sanford  v.  Tanner,  105 
Ga.  486,  30  S.  E.  621;  Warren  v. 
Monnish,  97  Ga.  399,  23  S.  E.  823; 
Warmack  v.  Brownlee,  84  Ga.  196, 
10  S.  E.  738;  Powell  v.  Hammond,  81 
Ga.  567,  8  S.  E.  426;  East  Rome 
Town  Co.  v.  Cothran,  81  Ga.  359.  8 
S.  E.  737;  Howard  v.  Lowell  Mach. 
Co.,  75  Ga.  325;  Cherokee  Iron  Co. 
v.  Jones,  52  Ga.  276;  Burchard  v. 
Boyce,  21  Ga.  6. 

Illinois. — People  v.  Galesburg,  48 
111.  485. 


Indiana. — Laporte  v.  Scott  (Ind. 
1906),  76  N.  E.  878. 

Kansas. — Johnson  v.  County 
Commrs.,  34  Kan.  670,  9  Pac.  384. 

Louisiana. — State  v.  Judge  of  Dis- 
trict Court.  51  La.  Ann.  1768,  26  So. 
347. 

Maryland. — Welde  v.  Scotten,  59 
Md.  42;  McCreery  v.  Sutherland,  23 
Md.  471,  87  Am.  Dec.  578. 

Massachusetts. — Carleton  v.  Rugg, 
149  Mass.  550,  22  N".  E.  55,  5  L.  R 
A.   193. 

Mississippi. — Brown  v.  Speight,  30 
Miss.   45. 

Nevada. — Hobart  v.  Ford,  6  Nev. 
77. 

New  Jersey. — Coast  Co.  v.  Spring 
Lake,  56  N.  J.  Eq.  615,  36  Atl.  21; 
Doughty  v.  Somerville  &  E.  R.  Co., 
7  N.  J.  Eq.  629,  51  Am.  Dec.  267. 

New  York. — Brass  v.  Rathbone,  153 
N.  Y.  435.  47  N.  E.  905 ;  Wormser  v. 
Brown,  149  N.  Y.  163,  43  N.  E.  524: 
Strasser  v.  Moonelis,  108  N.  Y.  611. 
15  N.  E.  730;  Hatch  v.  Western 
Union  Teleg.  Co.,  93  N.  Y.  640; 
Pfohl  v.  Sampson,  59  N.  Y.  174;  Peo- 
ple v.   Schoonmaker.   50  N.   Y.  499- 


210 


Granting  oe   Injunctions. 


117 


junction  will  not  be  issued  when  upon  a  broad  consideration  of 
the  situation  of  all  the  parties  in  interest  good  conscience  does  not 


Van  Denater  v.  Kelsey,  1  N.  Y.  533; 
Weil  v.  Auerbach,  33  App.  Div.  629, 
53  N.  Y.  Supp.  339;  New  York  City 
&  W.  R.  Co.  v.  Portchester  Street  R. 
Co.,  23  App.  Div.  407,  48  N.  Y.  Supp. 
321. 

Oklahoma. — Couch  v.  Orne,  3  Okla. 
508,  41   Pac.  368. 

Oregon. — Burton  v.  Muffett,  3  Oreg. 
29. 

Pennsylvania. — Kneedler  v.  Lane  3 
Grant's  Cas.  523;  Gray  v.  Ohio,  & 
P.  R.  Co.,  1  Grant's  Cas.  412;  Col- 
lins v.  Northeastern  El.  R.  Co.,  2  Pa. 
Dist.  R.  417. 

Wisconsin. — Kulinski  v.  Dambrow 
ski,  29  Wis.  109. 

Is  discretionary  in  case  of  a 
bill  filed  ancillary  to  action  of 
ejectment. — King  v.  Williamson,  80 
Fed.  170,  25  C.  C.  A.  355,  42  U.  S. 
App.  393. 

Is  discretionary  in  case  to  re- 
strain issuance  of  writ  of  pos- 
session.— Sanford  v.  Tanner,  105  Ga. 
486,  30  S.  E.  621. 

Construction  of  street  rail- 
road.— In  Gloversville  v.  Johnstown, 
etc.,  R.  Co.,  49  N.  Y.  St.  Rep.  315, 
defendant's  charter  restricted  it  to 
the  use  of  animal  power.  By  an  agree- 
ment in  writing  the  plaintiff  granted 
defendant  the  right  to  use  electricity 
as  a  motive  power,  and  it  was  pro- 
vided that  nothing  therein  should  be 
construed  as  acknowledging  that  the 
railroad  may  lawfully  build  or  main- 
tain its  road  upon  the  side  of  the 
street.  In  an  action  for  a  violation 
of  this  agreement  in  not  moving  it3 
road  to  the  middle  of  the  street  an 
injunction  was  granted  restraining 
the  construction  of  said  road  on  the 
side  of  the  street  pending  the  action. 


Held,  that  the  granting  of  such  in- 
junction was  not  an  improper  exer- 
cise of  discretion  and  would  not  be 
disturbed.  Where  question  of  estop- 
pel by  standing  by  and  seeing  ex- 
pensive improvements  made  on  the 
premises  without  giving  notice  of 
title  depends  in  part  on  proof  to  be 
made  at  the  trial,  the  discretion  of 
the  chancellor  in  granting  a  tempo- 
rary injunction  until  the  facts  in- 
volved can  be  tried  by  a  jury  will  not 
be  controlled. 

Issuance  of  bonds. — Whether, 
pending  a  proceeding  under  the  Kan- 
sas statute  to  test  the  validity  of  an 
election  held  on  the  question  of  is- 
suing county  bonds,  the  issue  of  the 
bonds  should  be  enjoined,  is  a  mat- 
ter of  judicial  discretion.  Johnson  v. 
Wilson  County  Com'rs,  34  Kan.  670. 

"  It  may  be  safely  asserted  as  a 
general  rule  in  our  courts,  that  all 
injunctions  depend  upon  the  dis- 
cretion of  the  chancellor,  and  are  to 
be  granted  or  denied  according  to  the 
justice  and  equity  of  each  particular 
case."  Tucker  v.  Carpenter,  24  Fed. 
Cas.  No.  14217,  Hempst.  440,  441. 
Per  Johnson,  J. 

The  granting  or  refusing  of  an  in- 
junction rests  in  the  sound  discretion 
of  a  court  of  equity,  and  ought  not. 
as  a  general  rule,  to  be  granted, 
when,  under  the  circumstances  it 
would  be  against  good  conscience  or 
productive  of  great  hardship.  Loy  v. 
Madison  &  Hancock  Gas  Co.,  156  Ind. 
332,  58  N.  E.  844.  Per  Jordan,  J., 
citing  City  of  Logansport  v.  Uhl,  99 
Ind.  531,  50  Am.  Rep.  109. 

The  court  will  not  extend  al- 
legation by  construction  where  a 
party    asks    for    the    extraordinary 


211 


§117 


Geantino  of  Injunctions. 


require  it.2  So  where  the  controversy  involves  disputed  questions 
of  fact  as  well  as  grave  questions  of  law  there  is  not  an  abuse  of 
discretion  in  granting  an  injunction  until  a  trial  can  be  had  upon 
the  merits  of  the  cause.3  Where  the  pleadings  and  affidavits  of 
the  parties  show  a  controverted  state  of  facts  the  court  of  original 
jurisdiction  exercises  its  discretion  in  assuming  one  of  two  oppo- 
site versions  of  fact  to  be  correct,  and  if  this  discretion  leads  to  the 
granting  of  a  temporary  injunction  it  will  not  be  disturbed  on 
appeal,4  unless  it  clearly  appears  from  the  complaint  that  the 
plaintiff  cannot  in  any  point  of  view  be  entitled  to  the  final  relief 
of  injunction  as  demanded  therein.5  Again,  if  the  discretion  leads 
to  a  refusal  of  the  injunction  it  will  ordinarily  not  be  disturbed 
where  there  is  a  remedy  in  damages  and  the  defendant  is  solvent 
and  able  to  respond  therefor.6     It  is  also  usually  an  exercise  of 


remedy  of  injunction  but  to  entitle 
them  to  such  writ  they  must  clearly 
show  their  right  to  the  relief.  Bishop 
v.  Huff   (Neb.  1908),  116  N.  W.  605. 

2.  Heilman  v.  Lebanon  &  Annville 
St.  Ry.  Co.,  175  Pa.  St.  188,  199,  34 
Atl.   647.     Per  Williams,  J. 

The  weight  of  evidence  should 
control  the  judge  in  the  exercise  of 
his  discretion.  Campbell  v.  White, 
39  Fla.  745,  23  So.  555. 

3.  Electric  Ry.  Co.  v.  Savannah, 
Fla.  &  W.  R.  Co.,  87  Ga.  261,  13  S.  C. 
512.  See,  also,  Lamar  v.  Spalding, 
164  Fed.  27. 

4.  Strasser  v.  Moonelis,  108  N.  Y. 
611,  15  N.  E.  730;  Pfohl  v.  Sampson, 
59  N.  Y.  176;  Brown  v.  Cheese 
Assoc'n,  59  N.  Y.  242;  People  v. 
Schoonmaker,  50  N.  Y.  499;  Paul  v. 
Munger,  47  N.  Y.  469.  Where  the 
record  shows  a  bill  to  enjoin  defend- 
ant from  ditching  a  swamp  above  a 
certain  spring,  to  which  plaintiff  had 
purchased  the  right  to  dig  a  mill 
race,  supported  by  affidavits  that  the 
water  ran  through  the  swamp,  but 
opposed  by  affidavits  that  no  stream 


flowed  through  the  swamp,  an  appel- 
late court  cannot  reverse  for  an  abuse 
of  discretion  in  refusing  the  injunc- 
tion. Warmack  v.  Brownlee,  10  S.  E. 
738,  38  Ga.  196.  See,  also,  McMekin 
v.  Richards,  81  Ga.  192,  6  S.  E.  185; 
Richards  v.  Dower,  64  Cal.  62,  64. 
Every  material  allegation  in  a  bill 
for  an  injunction  was  traversed  and 
on  the  hearing  the  evidence  upon  each 
of  the  issues  was  conflicting.  Held, 
that  there  was  no  abuse  of  discretion 
in  refusing  to  grant  the  injunction. 
Wheelan  v.  Clarke,  79  Ga.  181,  3  S. 
E.  901;  Couch  v.  Williams,  79  Ga. 
211,  4  S.  E.  16. 

5.  McHenry  v.  Jewett,  90  N.  Y. 
58. 

6.  Clay  v.  Clay,  86  Ga.  359,  12  S. 
E.  1064.  In  injunction  proceedings, 
petitioners'  evidence  showed  that  they 
had  sold  a  ginning  outfit  to  one  of 
defendants  at  a  large  discount,  with 
the  understanding  that  it  was  not  to 
be  operated  within  two  miles  of  the 
one  then  operated  by  petitioners; 
that  this  defendant  subsequently 
leased    the    ginning    outfit,    so    pur- 


212 


Granting  of  Injunctions. 


§118 


Bound  discretion  not  to  interfere  by  injunction  in  quarrels  between 
husband  and  wife.7 

§  118.  Sound  discretion  considered. — As  distinguished  from 
arbitrary  discretion  and  from  a  lack  of  discretion,  sound  discretion 
consists  in  an  observance  of  the  rules  and  considerations  which 
have  generally  guided  and  influenced  the  courts  in  granting  pre- 
liminary injunctions;  and  many  of  these  rules  of  experience  have 
been  presented  and  illustrated  in  the  course  of  this  chapter.  In 
any  given  case  such  discretion  is  shown  in  the  steady  judgment 
with  which  the  judge  applies  the  general  rules  to  the  particular 
facts  with  which  he  has  to  deal.8    The  granting  of  an  injunction  is 


chased,  to  his  co-defendants,  who  had 
knowledge  of  the  conditions  of  the 
sale;  and  that,  in  violation  of  the 
agreement,  they  located  it  within  the 
prohibited  district.  Defendants'  evi- 
dence was  to  the  effect  that  it  was  not 
until  after  the  sale  that  petitioners 
undertook  to  affix  the  condition  as  to 
the  territory  within  which  the  gin 
should  be  operated.  It  also  ap- 
peared that  the  defendant  who  had 
purchased  the  outfit  was  solvent,  and 
able  to  respond  in  damages.  Held  no 
abuse  of  discretion  to  refuse  the  in- 
junction. Hill  v.  Staples,  85  Ga.  863, 
11  S.  E.  967. 

7.  It  is  no  abuse  of  discretion  for 
the  court  to  refuse  an  interlocutory 
injunction  prohibiting  the  husband, 
from  whom  his  wife  has  separated, 
from  occupying  her  property,  of 
which  he  was  in  possession  when  she 
separated  from  him.  Payton  v.  Pay- 
ton,  86  Ga.  773,  13  S.  E.  127,  where 
Bleckley,  C.  J.,  said :  "  Judicial  in- 
terference in  a  family  quarrel  of  this 
nature  should  not  be  too  summary. 
Very  likely  delay  may  have  a  salutary 
effect.  The  parties  left  to  themselves 
may  become  reconciled,  and  compose 


their  differences.  The  granting  of  an 
injunction  is  discretionary  in  any 
case.  Code,  §  3220.  Not  infrequently 
the  wisest  exercise  of  this  discretion 
is  by  non-intervention." 

8.  In  Rend  v.  Venture  Oil  Co.,  48 
Fed.  248,  Reed,  J. :  "  There  are  cer- 
tain well-settled  rules  regulating  the 
granting  of  preliminary  injunctions 
which  must  govern  in  passing  upon 
this  motion.  They  are  that  the  com- 
plainant must  show  a  clear  legal  or 
equitable  interest  or  right  which  is  to 
be  protected;  that  there  must  be  a 
well-grounded  apprehension  of  imme- 
diate injury  to  those  rights  or  inter- 
ests, and  a  clear  necessity  must  be 
shown  of  immediate  protection  to  such 
interest  or  right  which  would  other- 
wise be  seriously  injured  or  impaired. 
If  it  appears  that  the  preliminary  in- 
junction is  not  necessary  to  preserve 
interests  or  property  in  statu  quo 
until  final  hearing  and  the  rights  of 
the  complainant  will  suffer  no  serious 
injury  until  that  time,  or  that  the  in- 
jury threatened  is  of  such  a  nature 
that  it  can  be  remedied  on  final  hear- 
ing, then  the  injunction  ought  not 
to  be  granted.     And  so  if  it  appears 


213 


3  U8 


Granting  of  Injunctions. 


matter  of  grace  in  no  sense  except  that  it  rests  in  the  sound  dis- 
cretion of  the  court,  and  that  discretion  is  not  an  arbitrary  one. 
If  improperly  exercised  in  any  case  either  in  granting  or  refusing 
it,  the  error  is  one  to  be  corrected  upon  appeal.9  Such  discretion 
will  often  be  influenced  by  a  consideration  of  the  relative  injury 
and  convenience  likely  to  result  to  the  parties  from  granting  or 
refusing  the  injunction;  and  where  it  is  sought  to  restrain  a  public 
or  quasi  public  enterprise,  the  court  will  consider  how  far  public 
interests  may  be  affected  by  a  suspension  of  the  enterprise,10  even 
where  the  object  of  the  action  may  be  defeated  by  refusing  a  tem- 


that  the  complainant's  rights  are  not 
sufficiently  clear,  and  the  considera- 
tions of  respective  convenience  or  in- 
convenience to  parties  complainant 
and  defendant,  when  balanced,  show 
that  serious  injury  may  be  done  to 
i  the  defendant  by  the  granting  of  the 
injunction,  and  no  serious  injury  will 
be  done  to  complainant  by  withhold- 
ing it  until  final  hearing,  then  the  in- 
junction ought  not  to  be  granted. 
Other  considerations  may  have  at 
times  been  held  as  controlling  in  spe- 
cial cases,  but  the  general  rules,  as  I 
have  stated,  are  those  which  have 
been  held  as  governing  the  discretion 
which  is  to  be  exercised  in  passing 
upon  such  motions."  See,  also.  Fin- 
ger v.  City  of  Kingston,  29  N.  Y. 
St.  Rep.  702. 

9.  Campbell  v.  Seaman,  63  N.  Y. 
568,  20  Am.  Rep.  567.  Per  Earl,  J. 
See,  also,  Standard  Oil  Co.  v.  Oeser, 
11  App.  D.  C.  80,  25  Wash.  L.  Rep. 
500;  Rowley  v.  Van  Benthuysere.  16 
Wend.    (N.  Y.)    369. 

Except  in  clear  case  of  abuse 
of  discretion  an  order  for  an  injunc- 
tion will  not  be  reversed.  Simms  v. 
Patterson   (Fla.  1907),  43  So.  421. 

That  an  injunction  is  a  matter 
of    grace    does    not    mean    that    a 


chancellor  may  grant  or  refuse  an 
injunction  as  he  pleases,  but  that  his 
action  is  controlled  by  considerations 
of  conscience.  He  does  that  which 
in  good  conscience  he  ought  to  do. 
The  question  in  each  case  must  de- 
pend upon  the  circumstances  out  of 
which  it  grows,  and  requires  an  exer- 
cise of  judgment  in  determining  the 
equities  involved."  Heilman  v.  Leba- 
non &  Annville  St.  Ry.  Co.,  180  Pa. 
St.  627,  629.  37  Atl.  119.  Per  Wil- 
liams, J. 

The  granting  of  an  injunction  is  a 
judicial  act,  and  not  only  is  it  so, 
but  it  requires  the  exercise  of  the 
soundest  judicial  discretion,  founded 
not  on  arbitrary  notions  of  justice,  or 
of  right  and  wrong,  but  on  a  knowl- 
edge of  the  settled  rules  of  equity. 
Commercial  Bank  of  Rodney  v.  State, 
4  Sm.  &  M.   (Miss.)  439.  515. 

The  granting  or  refusal  of  a  pre- 
liminary injunction,  whether  manda- 
tory or  preventive,  calls  for  the  ex- 
ercise of  a  sound  judicial  discretion 
in  view  of  all  the  circumstances  of 
the  particular  case.  Harriman  v. 
Northern  Securities  Co..  132  Fed.  464. 
475.     Per  Bradford,  J. 

10.  Myers  v.  Duluth  Transfer  Ry. 
Co..  53  Minn.  335,  55  N.  W.  140. 


214 


Gkanting  of  Injunctions.  §  119 

porary  injunction.11  So  it  is  said  that  an  injunction  is  of  grace 
and  not  of  right;  it  is  the  conscience  of  the  chancellor  which  is  to 
be  aroused  or  quieted  and  he,  to  enlighten  his  conscience,  as  to 
whether  he  should  put  forth  his  hand  or  withhold  it,  will  look  into 
those  facts  which  aggravate  or  mitigate  the  alleged  wrongdoing.12 
And  in  the  exercise  of  sound  discretion  a  court  of  equity  which 
is  asked  to  grant  a  preliminary  injunction  will  consider  the  inter- 
ests of  both  parties  and  also  of  the  public,  and  will  not  without 
some  reasons  of  necessity  interfere  before  trial  with  the  conduct 
or  property  of  the  defendant.13  And  the  fact  that  complainants 
cannot  appeal  from  an  order  denying  an  injunction  while  the  de- 
fendants can  appeal  from  an  order  granting  one  is  not  a  reason 
why  the  court  should  grant  the  injunction  and  it  will  not  do  so 
except  where  the  parties  assent  if  it  is  convinced  that  one  should 
not  issue.14 

§  119.  Discretion  as  affected  by  statutes. — The  Georgia  Code 
expressly  makes  the  granting  and  continuing  of  an  injunction 
discretionary.15  In  North  Carolina  it  has  been  held  that  the  Code 
authorizes  an  appeal  from  a  judge  at  chambers  refusing  an  in- 
junction ;16  but  the  Supreme  Court  will  not  interfere  with  an  order 
granting  an  injunction  when  the  facts  submitted  to  the  court  below 
were  controverted  and  doubtful  and  no  serious  injury  to  any  of 
the  parties  can  arise  therefrom.17     Under  the  Louisiana  Code  of 

11.  Young  v.  Campbell,  75  N.  Y.  where  the  evidence  before  him  was 
525.  conflicting.     Goldsmith    v.    Elsas,    53 

12.  Pennsylvania  Co.  v.  Ohio  River  Ga.  186;  and  should  never  be  dis- 
junction R.  R.  Co.,  204  Pa.  St.  356,  turbed  unless  some  principal  of  sub- 
367,  54  Atl.  259.    Per  Dean,  J.  stantial     equity     has    been     violated. 

Injunction  is  not  a  matter  of  right.  Jones  v.  Johnson,  60  Ga.  260;   Phil- 

but  of  grace,  resting  in  the  sound  dis-  lips  v.  Davis,  61   Ga.   159;    Dozier  v. 

cretion  of  the  judge.    Pelzer,  Rodgers  Owen,  62  Ga.   157;   Bliley  v.  Taylor. 

&,  Co.  v.  Hughes,  27  S.  C.  408,  415.  86  Ga.   163,   13  S.  E.  283.     Evidence 

13.  Carleton  v.  Rugg,  149  Mass.  conflicting,  Atwater  v.  Equitable 
550,  556,  22  N.  E.  55.  Mort.  Co.,  86  Ga.  R81,  12  S.  E.  1065. 

14.  Edison  Elec.  L.  Co.  v.  Buckeye  16.  First  Nat.  Bank  v.  Jenkins,  64 
Elec.  Co.,  64  Fed.  225.  N.     C.    719,    followed    in    Jones    v. 

15.  Ga.  Code,  §  3220.    The  chancel-  Thome,  80  N.  C.  72. 

lor's  discretion  is  not  to  be  disturbed  17.  Nimocks  v.  Cape  Fear  Shingle 

215 


§  120  Granting  of  Injunctions. 

Practice,  which  authorizes  the  granting  of  an  injunction  to  pre- 
vent one  party  from  "  doing  some  act  injurious  to  the  other  party  " 
it  is  held  that  the  courts  have  a  sound  discretion  to  exercise 
whether  to  grant  or  refuse  an  injunction,  and  that  an  injunction 
may  properly  bo  refused  where  there  is  a  dispute  concerning  legal 
rights.18  But  in  particular  cases  in  which  the  law  has  directed 
that  an  injunction  should  issue,  a  party  who  has  complied  with 
the  conditions  prescribed  by  the  law  for  its  issuance  has  a  right 
to  it,  and  the  courts  have  no  discretion  to  refuse  it.19  In  New  York, 
the  general  statutory  provisions  relating  to  the  granting  of  injunc- 
tions are  permissive  and  directory  as  indicated  by  the  use  of  the 
word  may.20  This  is  the  case  also  in  respect  to  the  statute  of  1881 
authorizing  injunctions  to  issue  against  trustees,  committees  and 
guardians;21  and  in  respect  to  injunctions  against  usurpation  of 
corporate  franchises;22  and  to  prevent  waste  by  judgment  debtors.23 
Some  other  special  New  York  statutes  employ  the  mandatory 
word  shall,  and  are,  perhaps,  somewhat  restrictive  of  judicial 
discretion  in  respect  to  the  granting  of  the  injunctions  to  which 
those  statutes  relate.24 

§  120.  No  discretion  in  cases  of  tort. — In  Pennsylvania  it  is 

Co.,  110  N.  C.  230,  14  S.  E.  684;  S.  C.  porations   incorporated   in   the   State, 

Forsaith   Machine   Co.  v.   Hope   MiJl  except    such    companies    as    carry   on 

Lumber  Co.,  109  N.  C.  576,  13  S.  E.  business    in    the   State.      Re    Electro 

869.  Pneumatic  Transit  Co.,  51  N.  J.  Eq. 

18.  New  Orleans  v.  Great  Southern  71,   26   Atl.   463. 

Tel.  Co.,  37  La.  Ann.  571;   La.  Code  20.  Code  Civ.  Pro.,  §§  603,  604. 

of  Practice,  art.  303.  21.  L.  1881,  ch.  654,  §  6. 

19.  Beebe  v.  Guinault,  29  La.  Ann.  22.  Code  Civ.  Pro.,  §  1955. 
795.      See  this  case  distinguished  in  23.  Code  Civ.  Pro.,  §  1442. 

New  Orleans  v.  Telephone  Co.,  37  La.  24.  As  for  example  the  statute 
Ann.  573.  The  court  of  chancery  has  which  requires  injunctions  to  issue  to 
no  power  to  refuse  an  injunction  for-  prevent  trespass  or  waste  on  the  for- 
bidding a  corporation  failing  to  pay  est  reserve,  L.  1885,  ch.  283,  §  12; 
its  tax  to  do  any  business  under  its  and  the  statute  to  protect  the  trade- 
charter,  on  the  ground  that  it  has  marks  of  workingmen  unions,  L.  1889, 
been  unable  to  transact  business  in  ch.  385,  §  2;  and  to  prevent  the  cor- 
the  State,  under  N.  J.  Act,  April  18,  rupt  expenditure  of  public  moneys, 
1884,  imposing  a  tax  or  license  fee  L.  1879,  ch.  307,  §  2;  and  to  prevent 
of  one-tenth  of  one  per  cent,  on  the  violations  of  the  dairy  laws,  L.  1885, 
capital   stock   of  manufacturing   cor-  ch.  183,  §  19,  as  amended. 

216 


Gbanting  of  Injunctions. 


§120 


held  that  the  principle  that  the  chancellor  will  refuse  to  enjoin 
when  greater  injury  will  result  from  the  granting  than  from  the 
refusing  of  an  injunction  has  no  application  where  the  act  com- 
plained of  is  of  itself  tortious.25  And  it  has  been  declared  in  this 
connection  that  it  would  be  an  extraordinary  exercise  of  discretion 
not  to  interfere  with  a  wrongdoer  for  the  reason  that  he  would 
derive  a  greater  benefit  from  the  wrongful  possession  of  another's 


25.  Walters  v.  McElroy,  151  Pa. 
St.  549,  25  Atl.  125,  where  the  court 
said:  "To  extricate  themselves  from 
this  difficulty,  the  defendants  say  that 
the  plaintiff's  land  is  worth  little, 
while  they  are  engaged  in  a  great  min- 
ing industry  which  will  be  paralyzed 
if  they  shall  be  restrained  from  a  con- 
tinuance  of  the  acts  complained  of, 
and  that  in  equity  a  decree  is  of 
grace,  and  not  of  right;  and  invok- 
ing the  principle  that  a  chancellor 
will  never  enjoin  an  act  when  by  so 
doing  greater  injury  will  result  than 
from  a  refusal  to  enjoin,  they  ask 
that  the  plaintiff  be  turned  over  to 
his  remedy  at  law.  The  phrase  "  of 
grace "  predicated  of  a  decree  in 
equity  had  its  origin  in  an  age  when 
kings  dispensed  their  royal  favors  by 
the  hands  of  their  chancellors,  but, 
though  it  continues  to  be  repeated  oc- 
casionally, it  has  no  rightful  place  in 
the  jurisprudence  of  a  free  common- 
wealth, and  ought  to  be  relegated  to 
the  age  in  which  it  was  appropriate. 
It  has  been  somewhere  said  that 
equity  has  its  laws  as  law  has  its 
equity.  This  is  but  another  form  of 
saying  that  equitable  remedies  are 
administered  in  accordance  with 
rules  as  certain  as  human  wisdom 
can  devise,  leaving  their  application 
only  in  doubtful  cases  to  the  discre- 
tion, not  the  unmerited  favor  or 
grace  of.  the  chancellor.    Certainly  no 


chancellor  in  any  English  speaking 
country  will  at  this  day  admit  that 
he  dispenses  favors  or  refuses  right- 
ful demands,  or  deny  that  when  a 
suitor  has  brought  his  cause  clearly 
within  the  rule3  of  equity  jurispru- 
dence, the  relief  he  asks  is  demand- 
able  ex  delicto  justiliac  and  needs  not 
to  be  implored  ex  gratia.  And  as  to 
the  principle  invoked  that  a  chan- 
cellor will  refuse  to  enjoin  when  a 
greater  injury  will  result  from 
granting  than  from  refusing  an  in- 
junction, it  is  enough  to  observe  that 
it  has  no  application  where  the  act 
complained  of  is  in  itself  as  well  as 
in  its  incidents,  tortious.  In  such 
case  it  cannot  be  said  that  injury 
would  result  from  an  injunction,  for 
no  man  can  complain  that  he  is  in- 
jured by  being  prevented  from  doing 
to  the  hurt  of  another,  that  which 
he  has  no  right  to  do.  Nor  can  it 
make  the  slightest  difference  that  the 
plaintiff's  property  is  of  insignificant 
value  to  him  as  compared  with  the 
advantages  that  would  accrue  to  the 
defendants  from  its  occupation.  The 
plaintiff's  right  to  an  injunction  be- 
ing established  on  account  of  the 
damages  heretofore  sustained  follows 
as  an  incident  and  to  avoid  a  multi- 
plicity of  suits.  MeGowin  v.  Reming- 
ton, 12  Pa.  St.  56;  Souder's  Ap- 
peal, 57  Pa.  St.  498;  Allison's  Ap- 
peal, 77  Pa.  St.  221." 


217 


§  121 


Granting  of  Injunctions. 


property  than  the  owner  would  from  his  rightful  ownership.26  It 
has  also  been  decided  in  Massachusetts  that  an  injunction  should 
not  be  denied  and  the  plaintiff  confined  to  his  remedy  for  damages 
on  the  ground  that  the  injury  of  the  injunction  to  the  wrongdoer 
would  greatly  exceed  the  benefit  to  the  plaintiff,  for  the  result 
of  such  denial  would  be  "  to  allow  the  wrongdoer  to  compel  inno- 
cent persons  to  sell  their  right  at  a  valuation."  27 

§  121.  Abuse  of  discretion  in  granting  injunction. — It  is  not 
often  in  our  time  that  the  judges  are  to  be  charged  with  an  abuse  of 


26.  In  Corning  v.  Troy,  etc.,  Fac- 
tory, 40  N.  Y.  191,  205,  the  court 
said :  "  The  question  then  comes  to 
this,  whether  the  defendant,  who  has 
wrongfully  diverted  from  the  plain- 
tiffs a  stream  affording  such  a  water 
power,  shall  be  permitted  to  continue 
such  wrongful  diversion,  and  then  to 
deprive  the  plaintiffs  of  what  is 
clearly  theirs  without  their  assent, 
upon  the  ground  simply  that  its  res- 
toration would  be  a  great  damage  to 
it.  In  other  words,  that  by  its  con- 
tinuance wrongfully  to  appropriate 
to  its  own  use  the  property  of  the 
jlaintiffs,  it  derives  a  much  greater 
benefit  than  the  plaintiffs  could  by 
being  restored  to  their  own.  The 
bare  statement  of  the  question  would 
seem  to  suggest  the  only  proper  an- 
swer. The  very  idea  of  justice  is  to 
give  to  each  one  his  due." 

27.  Lynch  v.  Union  Inst,  for  Sav- 
ings, 158  Mass.  394,  33  N.  E.  603, 
where  a  sub-lessee  was  threatened 
with  eviction  by  the  landlord  and 
Holmes,  J.,  said:  "The  only  ques- 
tion intended  to  be  presented  by  the 
report  is  whether  the  injunction 
should  be  denied  and  the  plaintiff 
confined  to  recovering  his  damages 
on  the  ground  that  the  injury  of  the 
injunction  to  the  owner  would  be  in- 


commensurate with  the  benefit  to  the 
plaintiff.  The  result  of  denying  the 
injunction  is  '  to  allow  the  wrongdoer 
to  compel  the  innocent  persons  to 
sell  their  right  at  a  valuation.' 
Tucker  v.  Howard,  128  Mass.  361, 
363.  The  decision  in  Brande  v. 
Grace,  154  Mass.  210,  31  N.  E.  633, 
is  not  an  authority  for  that.  There 
the  defendant  built  a  structure  on  its 
own  land  after  a  decision  by  the  Su- 
perior Court  that  it  had  a  right  to 
do  so.  When  the  plaintiff's  lease  had 
but  eight  months  more  to  run,  this 
court  decided  that  the  structure  was 
unauthorized  because  it  interfered 
with  an  implication  in  the  lease  that 
the.  rooms  should  continue  to  open 
on  Fremont  street;  but  an  injunction 
was  refused,  in  view  of  the  early 
termination  of  the  lease.  In  the 
present  case  the  plaintiff's  lease  has 
a  year  and  nine  months  to  run.  The 
defendant  is  not  interfering  with  a 
doubtful  easement  under  a  mistaken 
view  of  its  rights.  Now,  at  all 
events,  if  not  from  the  beginning,  it 
simply  is  dispossessing  or  trying  to 
dispossess,  a  man  of  his  land  by  will- 
ful wrong;  and  its  argument  that  it 
should  not  be  restrained  in  proceed- 
ing must  be  that  it  can  make  more 
money  out  of  the  plaintiff's  property 


218 


Granting  of  Injunctions.  §  121 

discretion.  Of  course  with  a  long  motion  calendar  and  a  waiting 
throng  of  ex  parte  applicants  before  him  a  judge  is  liable  some- 
time to  grant  an  injunction  without  the  exercise  of  sound  dis- 
cretion.28 In  an  action  in  the  Superior  Court  of  the  city  of  New 
York  to  restrain  a  tenant  from  selling  pools  and  registering  bets 
on  horse  races  on  the  premises  leased  from  plaintiff,  the  complaint 
and  affidavits  were  remarkable  in  failing  to  disclose  any  right  or 
equity  of  plaintiff  or  any  injury  to  him;  and  they  were  open  to 
nearly  every  objection  ever  sustained  by  courts  of  equity  as  fatal 
to  an  application  for  a  temporary  injunction  ;  the  lease  set  forth  did 
not  restrict  the  defendant's  business  and  the  complaint  did  not 
allege  any  injury  to  plaintiff  but  did  allege  that  defendant's  busi- 
ness was  in  violation  of  the  Penal  Code,  which  allegation  was  alone 
a  complete  bar  to  injunctive  relief;  to  grant  the  injunction  also 
required  the  court  to  determine  on  a  motion  the  constitutionality 
of  the  statute  of  1887  in  relation  to  racing  associations.  The  gen- 
eral term  were  of  opinion  that  the  controversy  was  not  a  real  one 
and  that  plaintiff  ought  to  have  been  turned  out  of  court  as  not 
having  clean  hands.29    There  is  no  abuse  of  discretion  in  refusing 

than  the  plaintiff  can  if  it  is  allowed  tiff  avers   that  the  lease   runs   from 

to  take  it.     See  Goodson  v.  Richard-  August   1,    1892,  until  Mav   1     1895. 

son,  L.  R.  9  Ch.  App.  221,  224.  The  lease  itself  shows  that  it  expires 

28.  Although  the  granting  of  an  May  1,  1894.  It  contains  no  restric- 
mjunction  is  to  a  certain  extent  a  tion  whatever  against  the  carrying 
matter  of  discretion  with  the  court,  on  of  any  kind  of  business  upon  the 
yet  where  no  equitable  case  appears  demised  premises.  The  business 
on  the  record,  the  decree  of  the  court  sought  to  be  restrained  is  alleged  to 
below  will  be  reversed  on  a  writ  of  be  that  of  receiving  money  and  mak- 
error.  Thompsonville  Scale  M'f'g  ing,  registering  and  recording  bets 
Co.  v.  Osgood,  26  Conn.  16.  upon  horse  races  run  at  certain  race 

29.  DeLacy  v.  Adams,  52  N.  Y.  tracks  within  the  State  of  New  York 
St.  Rep.  509,  Freedman,  J.,  said:  and  elsewhere.  There  is  no  allega- 
"  The  action  is  brought  by  plaintiff  tion  in  the  complaint  that  the  carry- 
to  restrain  the  defendant  as  tenant  ing  on  of  the  business  complained 
under  a  lease  from  the  plaintiff,  of  is  injurious  to  the  plaintiff  or  to 
from  carrying  on  a  certain  business  the  demised  premises,  and  for  all 
at  the  demised  premises,  No.  43  West  that  appears  the  plaintiff  may  have 
Twenty-ninth  street,  in  the  city  of  been  greatly  benefited.  So  there  be- 
New  York.  In  the  complaint  and  in  ing  no  covenant  whatever  in  the  case 
his  accompanying  affidavit  the  plain-  restricting    the    use    to    be    made    of 

219 


§121 


Granting  of  Injunctions. 


an  injunction  where  the  facts  are  complicated,  the  evidence  con- 
flicting, the  legal  questions   difficult,   and  the  defendant  not  in- 


the  premises  the  plaintiff  simply 
avers  '  that  at  the  time  of  the  letting 
of  the  said  premises  the  said  defend- 
ant agreed  not  to  use  the  same  for 
any  business  in  violation  of  law,'  and 
'  that  the  said  business,  so  conducted 
at  the  said  premises  is  in  violation 
of  section  351  of  the  Penal  Code  of 
this  State.'  Now  the  defendant 
might  have  insisted  that  the  com- 
plaint does  not  show  facts  sufficient 
to  constitute  a  cause  of  action  for 
equitable  relief  by  injunction  in  the 
first  place  for  want  of  an  allegation 
of  damage,  and  in  the  second  place 
because  upon  plaintiff's  own  theory 
the  plaintiff  has  a  remedy  at  law, 
and  especially  under  the  criminal 
law  of  the  State.  .  .  .  Upon  the 
record  thus  made  by  the  pleadings 
and  accompanying  affidavits  this 
court  has  been  called  upon  to  deter- 
mine the  legality  or  illegality  of  the 
said  business  on  a  mere  motion.  A 
full  and  complete  determination  of 
this  question  involves  the  constitu- 
tionality of  chapter  479  of  the  Laws 
of  1887,  which  provides  that  the 
Code  provisions  shall  not  apply  to 
the  grounds  of  incorporated  racing 
associations  during  a  certain  time  in 
each  year,  and  which,  according  to 
defendant's  claim,  justifies  his  busi- 
ness. The  decisions  of  Brennan  v. 
Brighton  Beach  Racing  Association,  30 
N.  Y.  St.  Rep.  406,  and  of  People  v. 
Wynn,  35  N.  Y.  St.  R.  487,  off  d,  128 
N.  Y.  599,  38  St.  Rep.  1012,  favor 
the  contention  of  the  defendant,  pro- 
vided he  does,  as  he  claims,  strictly 
a  commission  business;  but  in 
neither  case  was  the  constitutional 
question  passed  upon.     That  question 


as  now  presented  is  a  nice  and  com- 
plicated one,  and  a  court  of  equity 
should  not  assume  jurisdiction  to  de- 
termine it  upon  a  mere  motion,  un- 
less fully  satisfied  that  all  the  neces- 
sary facts  are  before  the  court,  and 
that  the  controversy  between  the  par- 
ties is  a  real  one,  and  of  such  a  char- 
acter as  to  necessitate  the  interposi- 
tion of  the  equitable  powers  of  the 
court.  Owing  to  the  insufficiency  of 
the  complaint  as  already  pointed  out 
the  case  does  not  call  for  the  interpo- 
sition of  the  equitable  process  of  the 
court.  The  accompanying  affidavits 
cannot  and  do  not  enlarge  the  cause 
of  action  pleaded.  But  independently 
of  that  consideration  the  record  as  a 
whole  does  not  fully  and  fairly  repre- 
sent all  the  facts  which  the  court 
should  be  put  in  possession  of,  and  a 
little  reading  between  the  lines  sug- 
gests a  doubt  whether  the  contro- 
versy between  the  parties  is  of  such 
a  character  that  a  court  of  equity 
should  take  cognizance  of  it.  To  be 
entitled  to  any  relief  the  plaintiff 
must  satisfy  the  court  that  the  con- 
troversy is  a  real  one,  and  that  he 
comes  into  court  with  clean  hands. 
All  these  matters  can  be  more  satis- 
factorily determined  at  the  trial  of 
the  issues,  where  the  parties  may  be 
orally  examined  and  cross-examined. 
Such  trial  may  be  had  in  a  very 
short  time  if  the  parties  desire  it. 
For  the  present  it  is  sufficient  to  say 
that  in  every  aspect  which  can  be 
properly  taken  the  case  at  bar  is  one 
in  which  the  court  will  not  interfere 
by  injunction  in  advance  of  the 
trial." 


220 


Granting  of  Injunctions.  §  122 

solvent  so  as  to  jeopardize  redress  for  any  damage  that  may  be 
sustained  from  the  alleged  trespass  sought  to  be  enjoined.20 

§  122.  Discretion  not  to  be  forced  by  mandamus. — The  grant- 
ing of  an  injunction  being  a  matter  of  discretion  on  the  part  of 
the  judge  or  court  applied  to,  a  mandamus  will  not  generally  lie 
to  compel  its  granting  or  vacating.31  Thus  in  a  case  in  which  it 
was  deemed  that  the  Practice  Code  of  Louisiana  vested  a  discretion 
in  the  judge,  it  was  held  that  mandamus  would  not  lie  to  compel 
him  to  restrain  the  city  of  Xew  Orleans  from  disposing  of  the 
general  appropriation  for  the  year,  until  the  determination  of  a 
pending  action  to  try  relator's  right  to  have  certain  demands  paid 
out  of  it.32  And  the  court  of  last  resort  will  not  interfere  by 
mandamus  to  compel  the  dissolution  of  an  injunction  on  the  filing 
of  an  answer.33  The  Arkansas  statute  authorizing  the  issuing  of  a 
mandamus  against  a  circuit  judge  or  a  Circuit  Court  that  refused 
to  grant  an  injunction  was  superseded  by  the  Civil  Code  of  that 
State  and  is  no  longer  in  force.34  Mandamus  is  not  to  be  thu3  used 
to  perform  the  office  of  an  appeal  or  writ  of  error.33  In  Louisiana 
it  is  decided  that  the  authority  conferred  on  the  Supreme  Court 

30.  White  v.  Williamson,  92  Ga.  but  to  simply  ascertain  whether  he 
443,  17  S.  E.  604.  See,  also,  Electric  had  any  discretion  in  the  premises. 
Ry.  Co.  v.  Savannah,  Fla.  &  W.  R.  His  exercise  of  discretion  can  be  re- 
Co.,  87  Ga.  261,  13  S.  E.  512.  viewed  only  on  appeal."      See,   also 

31.  Ex  parte  Schwab,  98  U.  S.  New  Orleans  v.  Great  Southern  Tel. 
240.  See  Lewis  v.  D'Albor,  116  La.  Co.,  37  La.  Ann.  571;  State  v.  Ri<rh- 
679,  41  So.  31.  tor,  Judge,   38   La.  Ann.  916;    State 

32.  State  ex  rel.  Johnson  v.  Righ-  v.  Police,  Jury,  39  La.  Ann.  765- 
tor,  40  La.  Ann.  852,  5  So.  416,  State  v.  Parish  Judge,  31  La.  Ann. 
where  the  court  said:  "  On  this  state  794;  State  v.  Judge,  etc.,  28  La.  Ann, 
of  facts  the  question  of  law  raised  is  905. 

not   whether    the   plaintiff   was   enti-  33.  Ex  parte  City  Council,  24  Ala. 

tied   to   his    injunction    at    all,   but  98,     where     Chilton,     C.     J.      said: 

rather    was    he    entitled    to    it    as    a  "  Mandamus  lies  to  compel  the  infe- 

matter  of  right,  and  had  the  respond-  rior  courts   to   exercise   a   discretion 

ent  the  discretion  to  refuse  it.     In  a  but  not  to  control  that  discretion." 
mandamus  proceeding  we  are  not  at  34.  Ex  parte  Hays,  26  Ark.  510. 

liberty  to  inquire  whether,  in  disal-  35.  Ex  parte  Loring,  94  U.  S.  418- 

lowing  the  writ  the  respondent  exer-  Ex  parte  Flippin,  94  TJ.  S.  350. 
cised  a  sound    and    legal    discretion, 

221 


^12-'!  Gkanti.\<;    OF    I  \.h  nc tioxs. 

by  the  Constitution150  to  grant  remedial  writs  in  the  exercise  of  a 
supervisory  jurisdiction  should  only  be  exercised  in  special  emer 
gency  cases  and  that  mandamus  will  not  be  granted  to  compel  a 
judge  to  enjoin  the  enforcement  of  an  ordinance  where  it  does 
not  appear  that  temporary  delay  will  work  irreparable  injury  and 
no  action  has  been  taken  by  the  city.37  The  power  conferred  on 
the  Supreme  Court,  of  Louisiana  to  issue  a  mandamus  in  such  cases 
does  not  enable  the  parly  to  substitute  proceedings  by  mandamus 
to  proceedings  by  appeal.38 

§  123.  Continuance  of  injunction. — The  continuance  as  well 
as  the  granting  of  a  temporary  injunction  is  within  the  discretion 
of  the  court  of  original  jurisdiction,  which  is  not  reviewable  in 
the  Court  of  Appeals  unless  it  appears  from  the  complaint  that  the 
plaintiff  is  not  entitled  to  final  injunctive  relief.39  It  is  obvious 
that  a  temporary  injunction  which  has  been  granted  on  facts  ex- 
trinsic to  the  cause  of  action  should  ordinarily  be  continued  until 
the  final  hearing  and  adjudication  upon  the  merits.40  In  Iowa, 
where  fraud  is  the  gravamen  of  the  injunction  petition,  the  in- 
junction will  not  be  dissolved  on  a  mere  denial  of  the  allegations 
of  fraud  but  will  be  continued  until  the  final  determination  of  the 
issue.41  Upon  a  motion  for  continuance  a  reference  may  be  ordered 
under  section  1015  of  New  York  Code  of  Procedure  to  take  proof 
of  controverted  facts  which  are  too  uncertainly  presented  by  the 
affidavit;42  and  when  the  referee's  report  comes  in,  the  court  does 
not  sit  to  hear  an  appeal  upon  the  law  and  the  facts,  and  the  prac- 
tice does  not  authorize  the  filing  of  exceptions  to  the  report,  nor  a 

36.  Art.  94.  Steele  v.  Pittsburgh  R.  Co.,  58  Hun, 

37.  Murat   v.   New   Orleans    (La.      611,  12  N.  Y.  Supp.  576. 

1907),  44  So.  279.  40.    Safety    Electric,    etc.,    Co.    v. 

38.  Beasley    v.    Jenkins,    117    La.  Creamer,  47  N.  Y.  St.  Rep.  214. 
577,  42  So.  145.  41.  Stewart  v.  Johnston,  44  Iowa, 

39.  Strasser  v.  Moonelis,  108  N.  Y.  435;     Brigham    v.    White,    44    Iowa, 
611,  15  N.  E.  730.     A  temporary  in-  677. 

junction  will  not  be  continued  when  42.  Continental  Store  Co.  v.  Clark, 

it  appears  that  all  the  relief  sought  7  N.  Y.  Civ.  Pro.   183;   off'd  100  N. 

by  the  plaintiff  will  be  obtained  by  Y.  365. 
the     final     judgment    in    the    cause. 

222 


Granting  of  Injunctions. 


§124 


motion  to  overrule  such  exceptions  and  to  confirm  the  report.43 
In  Indiana  a  temporary  injunction  continues  in  force  pending  an 
appeal  from  the  order  granting  it,  and  is  not  affected  by  the  filing 
of  an  appeal  bond  unless  the  appellant  is  relieved  from  the  opera- 
tion of  the  injunction  by  a  special  supersedeas,  which,  on  proper 
showing,  may  be  granted  by  the  appellate  court.44  In  Illinois  a 
temporary  injunction  may  be  kept  in  force  pending  an  appeal 
from  a  decree  dismissing  the  suit  for  an  injunction.45 


§  124.  Notice  of  application ;  necessity  of. — It  is  a  general  rule 
that  an  application  for  an  injunction  should  not  be  granted  without 
notice  to  the  adverse  party.46  And  where  a  bill  is  amended  by  the 
addition  of  a  prayer  for  an  injunction  to  restrain  a  defendant 
against  whom  no  order  was  originally  prayed,  he  is  entitled  to 
notice  and  to  an  opportunity  to  show  cause  to  the  contrary.47  And 
an  injunction  should  not  be  granted  without  notice  upon  the  veri- 
fied complaint  alone,  when  material  allegations  therein  are  made 


43.  Kelly  v.  Charlier,  18  Abb.  N. 
C.  416. 

44.  Miller  v.  Burket,  132  Ind.  469, 
32  N.  E.  309;  Central,  etc.,  Tel.  Co. 
v.  State,  110  Ind.  203,  10  N.  E.  922, 
12  N.  E.  136;  Alderman  v.  Nelson, 
111  Ind.  255,  12  N.  E.  394;  Randies 
y.  Randies,  67  Ind.  434;  Walls  v. 
Palmer,  64  Ind.  493;  State  v.  Chase, 
41  Ind.  356. 

45.  Shreffler  v.  Nadelhoffer,  133 
111.  536,  25  N.  E.  630. 

46.  United  States. — In  re  Cary,  10 
Fed.  622. 

Colorado. — People  v.  District 
Court  of  Lake  County,  29  Colo.  277, 
68  Pac.  244,  93  Am.  St.  Rep.  61. 

Florida. — Richardson  v.  Kittlewell, 
45  Fla.  551,  33  So.  984. 

Georgia. — Strickland  v.  Griffin,  70 
Ga.  541. 

Indiana. — Wallace  v.  McNey,  6 
Ind.  300. 


Iowa. — Minneapolis  &  St.  Louis  R. 
R.  Co.  v.  Chicago,  Milwaukee  &  St. 
P.  R.  Co.,  116  Iowa,  681,  88  N.  W. 
1082. 

New  Jersey. — Ross  v.  Elizabeth 
Town  &  S.  R.  Co.,  2  N.  J.  Eq.  422. 

New  York. — Hallenberg  v.  Greene, 
66  App.  Div.  590,  73  N.  Y.  Supp. 
403. 

Washington. — Larsen  v.  Winder,  14 
Wash.   109,  44  Pac.   123. 

There  should  be  a  clear  case 
of  urgent  necessity  to  warrant  the 
granting  of  an  injunction  against  a 
municipality  without  notice.  Chi- 
cago v.  Farson,  118  111.  App.  291. 

It  is  a  matter  within  the  dis- 
cretion of  the  trial  court  whether 
the  holding  of  an  election  shall  be 
enjoined  without  notice.  State  v. 
Nicoll,  40  Wash.  517,  82  Pac.  895. 

47.  Jack  v.  Kehler,  55  Ga.  639; 
Spangler's  Appeal,  64  Pa.  St.  387. 


223 


§  125  Granting  of  Injunctions. 

"  upon  information  and  belief."  M  So  there  is  no  jurisdiction  to 
grant  the  injunction  without  either  service  of  a  summons  or  the 
appearance  of  the  defendant  where  notice  is  essential  under  the 
statute.49  And  in  Nebraska,  under  the  statute  there  in  force,  when 
it  is  deemed  proper  by  the  court  or  judge  that  the  defendants  shall 
have  notice  of  the  application  and  be  heard  before  the  injunction 
is  granted,  the  judge  or  court  may  so  direct  and  in  the  meantime 
restrain  the  party  from  doing  the  things  complained  of.50  In  a 
case  in  Michigan  it  is  decided  that  an  injunction  to  stay  proceed- 
ings at  law  can  in  no  case  be  granted  by  a  Circuit  Court  commis- 
sioner without  notice,  and  that  if  it  is  allowed  without  notice  it  is 
void  for  want  of  jurisdiction  in  the  commissioner.51  Tf  a  bill  is 
without  merits  the  court  may  on  its  face  refuse  an  injunction 
without  requiring  the  defendant  to  show  cause.52 

§  125.  Same  subject  continued — It  is  obvious  that  important 
enterprises  and  business  of  the  defendant  should  not  ordinarily 
be  arrested  by  an  injunction  issued  without  notice  to  him.53  In 
Kansas,  where  the  injunction  is  granted  at  the  commencement  of 
the  action,  the  clerk  shall  indorse  upon  the  summons  "  injunction 

48.  Dinehart  v.  Town  of  La.  Fay-  argue  his  right,  and  the  judge  will 
ette    19  Wis.  677.  near  ^"m  ex  Parte-    If  convinced  that 

49.  Hallenborg  v.  Greene,  66  App.  the  defendant  should  be  called  upon 
Div.  (N.  Y.)  590°  73  N.  Y.  Supp.  403.  to  show  cause,   the   judge   will   then 

50.  State  v.  Baker,  62  Neb.  810,  order  him  up  for  that  purpose,  ap- 
88  N    W    124  pointing  a  time  and  place  as  the  code 

51.  Beinay  v.  Coats,  17  Mich.  411.  requires— but    why     should     the    de- 

52.  Remshart  v.  Savannah  R.  Co.,  fendant  be  troubled  if  there  is  obvi- 
54  Ga    579      In  Brown  v.  Wilson,  56  ously  no  merit  in  the  bill?" 

Ga  534,  Bleckley,  J.,  said:  "The  53.  Kane  v.  Montreal  Tel.  Co. 
judge  on  inspecting  a  bill  which  is  (Quebec),  20  L.  Can.  Jurist.  120; 
clearly  without  equity  may  decline  Atchison,  etc.,  R.  Co.  v.  Fletcher,  35 
to  order  the  defendants  to  show  cause.  Kan.  230.  In  Androvette  v.  Browne, 
54  Ga  579  It  does  not  follow  from  4  Abb.  Pr.  440,  an  ex  parte  motion 
this  that  the  complainant  will  be  for  an  injunction  was  denied,  with 
denied  a  hearing  in  support  of  his  leave  to  renew  on  the  regular  eight- 
bill  if  he  asks  for  it  when  the  bill  is  day  notice,  it  being,  as  Roosevelt,  J., 
presented  or  before  the  judge  has  re-  said,  "no  case  of  an  immediately 
turned  it  with  his  decision.  By  brief,  pressing  character.  See  State  v. 
or    otherwise,   the    complainant   may  Rush  County,  35  Kan.  150. 

224 


Granting  of  Injunctions.  §  125 

allowed,"  and  it  shall  not  be  necessary  to  issue  the  order  of  in- 
junction ;  nor  shall  it  be  necessary  to  issue  the  order  where  notice 
therefor  has  been  given  to  the  enjoinee,  but  service  of  the  sum- 
mons so  indorsed,  or  notice  of  the  application,  shall  be  notice  of 
the  allowance  of  the  injunction.54  And  it  is  not  essential,  though 
perhaps  more  regular,  that  such  indorsement  upon  the  summons 
should  be  signed  by  the  clerk.55  In  Tennessee  the  practice  is  to 
grant  temporary  injunctions  on  the  applicant's  ex  parte  statement, 
under  oath,  showing  his  probable  right  and  a  probable  danger  to 
it.5S  In  New  Jersey  it  seems  a  matter  of  discretion  with  the  chan- 
cellor to  require  notice  of  the  application  to  be  given  to  defendant, 
whether  he  has  appeared  or  not.  If  he  has  answered,  it  is  irregu- 
lar, under  the  rules  of  practice,  not  to  give  him  notice,  unless  the 
notice  is  dispensed  with  by  the  master.57  In  a  recent  case  in 
Florida  it  is  decided  that  before  granting  a  temporary  injunction 
or  restraining  order  without  notice  it  is  said  that  the  court  should 
be  satisfied  that  a  clear  case  is  made  by  the  bill  therefor  and  also 
that  it  has  clearly  been  made  to  appear  that  it  is  a  case  of  urgent 
necessity  and  one  in  which  irreparable  mischief  will  be  produced 
if  the  aid  of  the  court  is  denied.58  In  New  Brunswick  a  mandatory 
injunction  cannot  be  granted  without  notice.59 

54.  Gen.  Stats.   1889.   §  4338.  the   sufficiency  of  the  service  of  the 

55.  State  v.   Pierce,  51   Kan.  241,       original  order,  signed  by  the  district 
32  Pac.  924.     The  court:  "The  stat-       judge  himself." 

ute  does  not  require  the  indorsement  56.  Flippin   v.    Knaffle,   2    Cooper, 

to  be  signed  by  the  clerk.     It  might  Tenn.  Ch.  238 ;  Haynes  v.  Hazlerigg, 

be   well   for  the  clerk  to  do  so,  but  1  Tenn.  242;   Rutherford  v.  Metcalf, 

where  an  indorsement  of  the  kind  is  5  Hayw.  58,  65. 

authorized  by  the  statute,  and  where  57.  Buckley  v.  Corse,  1  N.  J.  Eq. 
a  writ  is  duly  signed  by  the  clerk,  504.  On  a  bill  for  an  injunction,  and 
and  attested  by  his  seal,  the  party  for  leave  to  make  inspection,  the  bet- 
on  whom  service  is  made  is  bound  to  ter  practice  is  to  require  notice  be- 
take notice  of  all  indorsements  that  fore  granting  the  order  for  inspec- 
the  law  authorizes  to  be  made  tion,  enjoining,  in  the  meantime,  so 
thereon;  and  as  the  statute  provides  far  as  may  be  necessary  to  preserve 
that  it  shall  be  sufficient  notice  of  the  the  status  quo.  Thomas  Iron  Co.  v. 
grant  of  the  injunction,  where  such  Allentown  Mining  Co.,  28  W.J.  Eq.  77. 
indorsement  is  made,  the  service  in  58.  Savage  v.  Parker  (Fla.  1907), 
this  case  must  be  held  sufficient,  with-  43  So.  507. 
out  reference  to  the  question   as   to  59.  N.  B.  Consol.  Stat.,  p.  398. 

225 

15 


§126 


Geanting  of  Injunctions. 


§  126.  Same  subject;  rule  in  New  York. — In  New  York  the 
order  may  be  granted,  upon  or  without  notice  unless  the  defendant 
has  answered,  in  which  case  it  can  only  be  granted  upon  notice  or 
an  order  to  show  cause.60  If  made  upon  notice,  either  before  or 
after  answer,  the  court  or  judge  may  enjoin  the  defendant,  until 
the  hearing  and  decision  of  the  application.61  Under  the  provision 
of  the  Code  after  a  defendant  has  answered  a  judge  who  has 
granted  a  preliminary  injunction  cannot  on  an  ex  parte  applica- 
tion grant  a  further  order  enjoining  the  defendant  from  doing 
acts  not  covered  by  the  former  injunction,  although  the  order 
recites  that  it  is  a  supplementary  injunction  order  in  addition 
to  the  one  heretofore  granted.62  In  this  State  an  injunction  can- 
not be  granted,  without  notice,  against  a  State  officer  or  board;63 
or  against  the  Board  of  Health  of  New  York  city.64 


60.  N.  Y.  Code  Civ.  Proc.  §  609; 
Babcock  v.  Clark,  23  Hun  (N.  Y.), 
391. 

See  Bloomfield  v.  Snowden,  2  Paige 
(N.  Y.),  355,  wherein  it  is  said  by 
Walworth,  Ch. :  "  It  is  not  the  prac- 
tice to  allow  an  injunction,  affecting 
the  rights  of  a  party  who  has  ap- 
peared, on  an  ex  parte  application  to 
the  court  upon  a  supplemental  bill; 
but  regular  notice  of  the  application 
should  be  given  to  such  party;  if  a 
temporary  injunction  is  necessary  to 
prevent  irreparable  injury,  before  reg- 
ular notice  can  be  given,  the  court 
will  grant  an  order  to  show  cause, 
and  allow  such  temporary  injunction 
in  the  meantime.  In  such  cases,  the 
temporary  injunction  falls,  of  course, 
if  the  complainant  neglects  to  serve 
the  papers  on  the  adverse  party,  and 
to  bring  on  the  application  at  the 
time  fixed  by  the  court,  or  as  soon 
thereafter  as  he  can  be  heard." 

61.  Bradley  v.  Walker,  59  N.  Y. 
Super.  334,  where  an  ex  parte  in- 
junction order  was  sustained  on  ap- 
peal.    N.  Y.,   §   609,   providing  that 


an  injunction  order  may  be  granted 
upon  or  without  notice,  in  the  dis- 
cretion of  the  "court  or  judge;"  and 
section  627,  providing  that,  where  an 
injunction  order  is  granted  on  notice, 
the  party  enjoined  may,  "  on  notice 
apply  for  an  order  vacating  it — con- 
fer on  the  judge,  as  a  judge  and  not 
as  a  court,  authority  to  hear  both 
parties  on  an  application  for  an  in- 
junction; and  a  county  judge  may 
give  notice  of  the  hearing  to  the 
person  sought  to  be  enjoined  by  di- 
recting him,  in  a  preliminary  in- 
junction, to  show  cause  why  it  should 
not  be  continued.  Morris  v.  City  of 
New  York,  7  N.  Y.  Supp.  943,  17 
Civ.  Pro.  R.  407.  The  requirement  of 
the  South  Carolina  Code  as  to  notice 
is  the  same  as  that  of  the  New  York 
Code.  See  Meinhard  v.  Youngblood, 
37  S.  C.  223,  15  S.  E.  947. 

62.  Rhodes  v.  Wheeler,  48  App. 
Div.  (N.  Y.)  410,  63  N.  Y.  Supp.  184. 

63.  Code  Civ.  Pro.,  §  605.  See 
Westheimer  v.  Schultz,  33  How.  Pr. 
11,  note. 

64.  L.  1882,  ch.  410,  S  61». 


226 


Granting  of  Injunctions.         §§  126a,  126b 

§  126a.  Same  subject;  where  injunction  operates  to  suspend 
general  business  of  corporation. — Under  a  statute  or  code  pro- 
vision prohibiting  the  granting  of  an  injunction  without'  notice- 
where  it  operates  to  suspend  the  general  or  ordinary  business  of  a 
corporation  it  is  decided  that  an  injunction  granted  ex  'parte  which 
so  operates  is  void.65  But  in  New  York  it  has  been  decided  that 
in  an  action  by  a  stockholder  to  enjoin  a  railroad  corporation  from 
intersecting  the  road  of  a  railroad  corporation  of  which  plaintiff 
is  a  member,  a  temporary  injunction  may  be  granted,  without 
notice  to  the  corporation  about  to  make  the  intersection,  and  that 
such  an  injunction  is  not  within  the  meaning  of  a  code  provision 
that  an  injunction  order  "  suspending  the  general  and  ordinary 
business  of  a  corporation "  can  only  be  granted  upon  notice.68 
And  in  California  it  has  been  decided  that  a  code  provision  that 
an  injunction  "  to  suspend  the  general  and  ordinary  business  of  a 
corporation  "  cannot  be  granted  without  due  notice  of  the  applica- 
tion for  it,  to  its  agent  or  proper  officers,  does  not  apply  to  an 
injunction  which  is  partial  and  particular  in  its  operation.67 

§  126b.  Same  subject;  statutes  as  to  length  of  time  for  which 
notice  must  be  given. — Where  the  statute  contains  provisions  as 
to  the  length  of  time  for  which  notice  upon  application  for  an 
inj  unci  ion  should  be  given  there  must  be  a  compliance  therewith, 
and  if  given  for  a  shorter  time  and  defendant  does  not  appear  he 
may  treat  an  injunction  thus  granted  as  given  without  notice.68 
So  in  a  case  in  Washington  it  was  decided  that  the  action  of  a 
court  in  granting  an  injunction  order,  without  notice  to  the  de- 
fendant, and  without  containing  any  provision  limiting  it  to  a 
day  certain,  fixed  by  the  court,  upon  which  a  hearing  could  be 
had  and  an  opportunity  afforded  the  defendant  to  show  cause  why 

65.  Wilkie    v.    Rochester   &    State       (N.  Y.)   328. 

Line  R.  Co.,    12   Hun    (N.  Y.),   242.  67.  Golden  Gate  Con.  H.  M.  Co.  v. 

See    Johnston    v.    Railroad    Co.,    58  Superior   Court,  65  Cal.    187,  3  Pac. 

Iowa,   537;    Lodonvillo    v.    Cass,   54  628,  construing  Cal.  Code  of  Proc,  § 

Iowa,  115.  531. 

66.  Howlett  v.    New    York,  West  68.  Johnson  v.  West  Side  Min.  Co., 
Shore,   etc.,   R.   Co.,    14   Abb.   N.    C.  22  Cal.  479. 

227 


§  126c  Granting  of  Injunctions. 

it  should  not  thereafter  be  containuod  in  force,  was  without  juris- 
diction and  void.69  And  in  New  York  it  is  decided  that  instead 
of  the  regular  notice  of  motion  prescribed  by  the  code,  the  plaintiff 
may  obtain  an  order  or  rule  to  show  cause,  returnable  at  an  earlier 
day,  requiring  defendant  to  show  cause  why  an  injunction  should 
not  be  granted.70  But  where  power  is  conferred  upon  a  court  to 
prescribe  a  shorter  notice  of  motion  than  specified  in  the  statute, 
or  of  dispensing  with  notice  altogether,  it  shall  be  confined  to 
exceptional  cases  and  should  not  be  exercised  indiscriminately  on 
all  occasions.71 

§  126c.  Same  subject;  waiver  of  notice. — The  want  of  notice 
or  insufficient  service  of  process  is  cured  by  the  appearance  and 
plea  of  the  party.72  So  in  an  early  case  in  New  York  it  was 
decided  that  defendants  by  appearing  in  the  action  by  counsel, 
and  opposing  a  motion  for  an  injunction,  and  reading  affidavits 
in  opposition  to  such  motion,  and  filing  the  same,  with  the  names 
of  their  attorneys  indorsed  thereon,  and  by  moving  that  all  pro- 
ceedings be  stayed  submitted  themselves  to  the  jurisdiction  of  the 
court,  and  appeared  in  the  action  unconditionally.71  And  in 
North  Carolina  it  is  held  that  where  a  motion  for  an  injunction 
is  made  in  term-time,  and  defendant  is  in  court,  and  actually 
appears  by  counsel  and  resists  the  motion,  he  will  be  deemed  to 
have  taken  actual  notice  thereof  and  to  have  waived  formal  notice.74 

69.  Larsen  v.  Winder,  14  Wash.  72.  Harris  v.  Given,  10  Sm.  &  M. 
109,  44  Pac.  123,  53  Am.  St.  Rep.  (Miss.)  563;  Health  Dept.  v.  Police 
864.  Dept.,    41    N.    Y.     Super.    St.    323; 

70.  Daly  v.  Amberg,  126  N.  Y.  Parker  v.  Williams,  4  Paige  (N.  Y.), 
490,  27  N.  E.  1038,  where,  on  Octo-  439;  Hyre  v.  Hoover,  3  W.  Va.  11; 
ber  15,  an  order  to  show  cause  was  Meinhard  v.  Youngblood.  37  S.  C.  223, 
made  by  the  judge,  on   presentation  15  S.  E.  947. 

to  him  of  the  moving  papers,  return-  73.  Cooley   v.   Lawrence,     5    Duer 

able  on  October  20,  and  directing  that  (N.  Y.),  605. 

service   of   the   order   on   October    17  74.  Hemphill  v.  Moore,  104  N.  C. 

should  be  sufficient.  379,   10  S.  E.  313.     See,  also.   Spar- 

71.  Androvette  v.  Bowne,  4  Abb.  row  v.  Davidson  College,  77  N.  C.  35; 
Prac.    (N.   Y.)    440.  University  v.  Lassiter,  83  N.  C.  38. 

228 


Gkanting  of  Injunctions.  §  126d 

§  12 6d.  Same  subject;  qualification  of  rule;  statutes. — Al- 
though it  is  a  general  rule  that  notice  to  the  adverse  party  of  an 
application  for  an  injunction  is  essential,  yet  the  rule  is  not  with- 
out its  exceptions.75  So  an  injunction  will  be  granted  upon 
motion  and  without  notice  wherever  the  giving  of  notice  would 
accelerate  the  injury  complained  of.76  And  in  cases  of  pressing 
necessity  where  the  threatened  injury  is  imminent  a  preliminary 
injunction  may  frequently  be  allowed  without  notice.77  So  if  it 
appears  from  the  facts  set  up  in  the  bill  that  the  rights  of  the 
complainant  will  be  unduly  prejudiced  and  the  affidavit  is  positive 
and  not  upon  information  and  belief,  it  is  sufficient  to  authorize 
granting  of  an  injunction  immediately  and  without  notice.78  And 
though  the  operations  of  a  company  in  the  construction  of  a  work 
of  great  public  convenience  should  not  be  suddenly  enjoined  with- 
out notice  unless  in  a  case  of  injury  and  pressing  necessity  yet, 
in  such  cases,  if  the  complainants  cannot  be  otherwise  secured  in 
their  rights  an  ex  parte  order  for  an  injunction  will  be  granted.79 
But  a  considerable  delay  by  complainant,  after  the  filing  of  his 
bill  in  applying  for  an  injunction,  is  evidence  that  the  emergency 
is  not  so  pressing  as  to  require  the  injunction  to  be  issued  without 

75.  "  A  preliminary  injunction  or-  does  not  authorize  granting  of  in- 
dinarily  will  not  be  granted  on  ex  junction  without  notice.  Henderson 
parte  affidavits  unless  in  a  clear  case.       v.  Flanagan,  75  111.  App.  283- 

This   is    a   salutary   rule.     It   neces-  77.  Lewton  v.  Hauer,  18  Fla.  872. 

saxily    admits,    however,    of    certain  Facts   must  be   averred   in   the 

recognized     exceptions."       Jones     v.  petition.      Chicago    City     R.     Co.    v 

Dimes,  130  Fed.  638.  Per  Bradford,  J.  Ward,   76   111.   App.   536;    Henderson 

76.  Allen  v.   Hawley,  6  Fla.   143,  v.  Flanagan,  75  111.  App.  283. 

63  Am.  Dec.  198.  Must  be  a  showing  of  emerg- 

It    must    appear    from    sworn  ency   to  authorize   granting    of    in- 

statements     that     rights     will     be  junction  without  notice.    Meier  v.  Fi 

prejudiced    by    the    giving    of   notice  delity  Nat.   Bank    (Wash.    1906),  86 

before  the  issuance  of  the  writ.  Sub-  Pac.  574. 

urban   Const.    Co.  v.  Naugle.   70   111.  78.  Village  of  Itasca  v.  Schroeder, 

App.    384.  182  m-   192'  55  N-  E-  50- 

Allegations  showing  what  de-  79.  Ross  v.  Elizabethtown  &  S.  R. 

fendant   conld    do     are    essential.  Co.,  2  N.  J.  Eq.  422.     See,  also,  Per- 

Beeker  v.  Defenbaugh.  66  111.  App.504.  kins  v.  Collins..  3  N.  J.  Eq.  482 ;  Cop- 
Possible  departure  of  defend-  ner  v.  Flemington  Min.  Co.,  3  N.  J. 

ant     from     court's     jurisdiction  Eq.  467. 

229 


§  126(1 


Geanting  of  Injunctions. 


notice,  or  without  some  attempt  to  serve  notice,  on  a  resident 
defendant.80  And  an  affidavit  that  notice  to  defendant  upon  ap- 
plication for  injunction  will  accelerate  the  injury  apprehended 
furnishes  no  reason  for  dispensing  with  notice  where  the  injury 
apprehended  is  the  making  of  a  judicial  sale  by  a  sheriff  on  a  day 
advertised.81  The  Michigan  rule  is  that  an  injunction  should  never 
be  granted  without  due  notice,  unless  the  peculiar  exigencies  of  the 
case  require  it  for  manifest  reasons,  to  be  shown  by  affidavit.81 
According  to  federal  practice,  an  injunction  will  not  be  granted  on 
motion  without  notice,  but  "  if  there  appears  to  be  danger  of 
irreparable  injury  from  delay,"  within  the  meaning  of  section  718 
of  the  Revised  Statutes  of  the  United  States,  a  restraining  order 
will  be  granted  and  served  on  defendant,  with  notice  of  the  time 
and  place  of  hearing,82  or  with  a  rule  to  show  cause.83 


80.  Swepson  v.  Call,  13  Fla.  337: 
360. 

81.  Richardson  v.  Kittlewell,  45 
Fla.  551,  33  So.  984. 

81.  Toledo  R.  Co.  v.  Detroit  R. 
Co.,  61  Mich.  9,  27  N.  W.  715.  If. 
owing  to  other  engagements  of  coun- 
sel or  pressure  of  court  business,  the 
motion  for  injunction  cannot  be 
heard  according  to  the  notice,  it 
should  not  be  thereafter  disposed  of, 
without  further  notice  to  defendant, 
and  without  giving  him  an  oppor- 
tunity to  be  heard.  Graham  v.  Camp- 
bell, L.  R.  7  Ch.  D.  490. 

82.  Chicago,  etc.,  R.  Co.  v.  Bur- 
lington etc.,  R.  Co.,  34  Fed.  481; 
Mowrey  v.  Indianapolis  R.  Co.,  4 
Biss.  78.  After  the  passage  of  the 
Act  of  Congress  of  1793,  and  prior 
to  the  Act  of  June  1,  1872,  a  tem- 
porary injunction  or  restraining 
order  could  not  be  granted,  without 
notice  to  the  adverse  party.  But  by 
the  seventh  section  of  the  Act  of 
Congress  of  June  1,  1872,  now  section 
718,  U.  S.  Rev.  Sts.,  if  a  bill  is  filed 
for  an  injunction,  and  a  subpoena  is- 
sued,  notifying  defendant  to  appear 


on  a  rule  day,  and  in  the  meantime 
there  is  danger  that  irreparable  in- 
jury may  be  committed,  the  court,  in 
the  exercise  of  a  sound  discretion,  will 
issue  a  temporary  restraining  order 
without  notice.  Payne  v.  Kansas  R. 
Co.,  46  Fed.  546.  See,  also,  Yueng- 
ling  v.  Johnson,  1  Hughes,  607 ;  Mow- 
rey v.  Indianapolis,  etc.,  R.  Co.,  4 
Biss.  78.  It  seems  that  where  an  ex 
parte  application  for  a  preliminary 
injunction  is  made,  without  notice  to 
the  other  party,  an  injunction  will 
not  be  granted,  unless  it  is  shown,  by 
affidavits  or  otherwise,  that  irrepar- 
able mischief  will  happen  before  hear- 
ing can  be  had  on  notice  given.  Cen- 
tral Trust  Co.  v.  Wabash  R.  Co.,  25 
Fed.  1,  2.  The  plaintiff  must  not 
fix  the  time  of  hearing  so  far  in  the 
future  as  to  embarass  the  defendant 
and  if  he  does,  the  defendant  may 
come  in  and  have  the  hearing  take 
place  within  reasonable  time.  Wal- 
worth v.  Supervisors,  5  Biss.  133. 

83.  Ex  parte  Huidkoper,  55  Fed. 
709;  Ex  parte  Chamberlain,  55  Fed. 
704. 


230 


Granting  of  Injunctions.  , 


§§  127,  12S 


§  127.  Notice;  perpetual  injunctions.— A  perpetual  injunction 
which  is  decreed  without  notice  to  defendant  and  without  an 
opportunity  to  him  to  be  heard  is  invaild.84  But  a  decree  awarding 
a  perpetual  injunction  cannot  be  reversed  merely  because  a  pre- 
liminary injunction  was  granted  in  the  suit  without  notice  to 
defendant,  if  the  evidence  justifies  such  a  decree.85  It  follows 
that  it  is  erroneous  to  decree  a  perpetual  injunction  to  stay  proceed- 
ings in  a  suit  against  third  persons,  not  parties  or  privies  to  the  suit 
in  which  the  decree  is  made.86 

§  128.  Application  on  what  made.— The  application  for  a  pre- 
liminary or  temporary  injunction  may  be  made,  according  to  the 
varying  practice  in  the  different  States,  on  a  verified  complaint 
alone87  by  a  motion  for  a  temporary  injunction  which  can  be  based 
only  upon  a  complaint  and  cannot  be  granted  upon  affidavits,88  or  on 
a  verified  bill  ;89  or  more  generally  on  a  complaint  or  bill  supported 
by  affidavits  ;90  or  on  bill  and  answer  ;91  or  on  bill  and  exhibits  and 


84.  State  v.  Jacksonville,  etc.,  R. 
Co.,  15  Fla.  201. 

85.  Brown  v.  Leuhrs,  79  111.  575. 

86.  Waller  v.  Harris,  7  Paige,  167. 

87.  Manufacturers'  Bank  v.  Folk, 
60  N.  Y.  St.  Rep.  802;  Barnard  v. 
Shirley.  135  ind.  363,  34  N.  E.  600, 
35  N.  E.   117. 

88.  South  Shore  T.  Co.  v.  Town 
of  Brookhaven,  53  Misc.  R.  (N.  Y.), 
392,  102  IN.  Y.  Supp.  1074;  citing 
Huntington  v.  Cortland  Home  Teleph. 
Co.,  62  App.  Div.  517;  Woodburn  v. 
Hyatt,  34  App.  Div.  246;  Sanders  v. 
Ader,  26  App.  Div.  176;  Hudson  Val- 
ley R.  Co.  v.  O'Connor,  95  App. 
Div.  6. 

89.  In  Griffith  v.  Hilliard,  64  Vt. 
643,  a  temporary  injunction  to  en- 
join a  trespass  in  cutting  timber  on 
the  orator's  land  was  granted  on  the 
bill  alone,  and  the  answer  having 
controverted  his  title  the  temporary 
injunction  was  continued  while  the 
title    was    being    tried.      See,    also, 


Youngblood  v.  Schamp,  15  N.  J.  Eq. 
42;  Langmaid  v.  Reed  (Mass.),  34 
N.  E.  593,  where  the  bill  waa 
amended;  Wagoner  v.  Wagoner,  76 
Md.  311,  25  Atl.  338,  where  the  bill 
was  filed  on  March  30,  1885,  and 
the  injunction  writ  issued  the  next 
day.  Wagner  v.  Rock  Island  (Ind.), 
34  N.  E.  545.  In  Rhode  Island  the 
practice  is  not  to  grant  an  ex  parte 
injunction  on  the  bill  alone  but  to  re- 
quire a  supporting  affidavit  of  com- 
plainant or  some  other  person.  Har- 
rington v.  Harrington,  15  R.  I.  341, 
5  Atl.  502. 

The  facts  stated  in  a  bill  verified 
by  affidavit  are  to  be  taken  as  true. 
Ex  parte  Pile,  9  Ark.  336;  Marion  v. 
Johnson,  22  La.  Ann.  512. 

90.  Grainger  v.  Smyth,  53  N.  Y. 
St.  Rep.  259.  In  Daly  v.  Amberg,  126 
N.  Y.  490,  495,  O'Brien,  J.,  said: 
"  The  presentation  of  the  summons, 
complaint,  affidavit  and  undertaking 
to   the   judge   conferred  on  him,   un- 


231 


§128 


Granting  of  Injunctions. 


answer;  if  the  answer  is  properly  before  the  court  the  defendant 
is  entitled  to  have  it  considered,  but  if  the  bill  fails  to  present  a 
case  for  an  injunction  it  is  not  material  that  the  answer  should  be 
considered  ;92  or  on  bill,  answer  and  cross-bill.93  In  Maryland  it  i* 
said  that  the  only  mode  of  obtaining  an  injunction  is  by  a  bill;9* 
but  by  the  Laws  of  1886,  chap.  441,  it  is  enacted  that  at  any  stage 
of  a  cause,  or  matter,  the  court  may  on  its  own  motion  or  "  the 
motion  or  petition  "  of  a  party,  issue  an  injunction.  Or  the  ap- 
plication is  made  on  petition  in  some  States,  as  in  South  Carolina, 
Iowa,  and  Texas.95     Where  the  right  to  an  injunction  is  based  on 


der  the  statute,  jurisdiction  to  make 
the  order,  and  it  was  valid  from  the 
moment  when  he  signed  and  delivered 
it."  In  Murdock  v.  Walker,  152  Pa. 
St.  595,  25  Atl.  492,  the  preliminary 
injunction  was  granted  on  the  plain- 
tiff's bill  and  supporting  affidavits 
and  the  defendants'  counter  affida- 
vits; and  so  in  Connelly  M'f'g  Co.  v. 
Wattles,  49  N.  J.  Eq.  92,  23  Atl. 
123.  In  Fritz  v.  Erie  City  Pass.  R. 
Co.,  155  Pa.  St.  472,  26  Atl.  653, 
there  was  an  injunction  bill  to  en- 
join the  railway  company  from  using 
electricity  for  motive  power  and  the 
motion  for  a  preliminary  injunction 
was  made  on  the  bill  and  ailidavits 
and  the  motion  was  refused  because 
the  question  was  considered  too  grave 
in  its  character  and  too  serious  to 
defendant  to  be  decided  before  final 
hearing.  In  Lehigh  Coal  &  Nav.  Co. 
v.  Miller,  155  Pa.  St.  542,  26  Atl. 
660,  the  motion  for  the  preliminary 
injunction  to  enjoin  the  collection  of 
taxes  on  the  coal  pockets,  on  the 
ground  that  they  were  an  indispen- 
sable part  of  the  canal  and  railroad 
in  the  transfer  of  coal,  was  granted 
on  the  bill  and  two  supporting  affi- 
davits filed  when  the  injunction  was 
granted,  opposed  by  two  affidavits  of 
defendant.     The  injunction  was  sus- 


tained. A  motion  for  an  injunction 
after  appearance  and  upon  notice, 
may  be  made  and  resisted  upon  such 
affidavits  as  either  party  may  be 
able  to  produce.  The  injunction  can 
only  be  granted  on  the  case  made  by 
the  bill,  but  that  case  may  be  estab- 
lished by  affidavits.  Blunt  v.  Hay,  4 
Sandf.   Ch.   362. 

Affidavits  are  essential  in  ad- 
dition to  a  verified  complaint. 
Hecker  v.  New  York,  28  How.  Prac. 
(N.  Y.)  211;  Roome  v.  Webb,  3  How. 
Prac.   (N.  Y.)   327. 

91.  Baltimore  Belt  R.  Co.  v.  Lee, 
75  Aid.  596,  23  Atl.  901.  In  Char- 
tiers  Block  Coal  Co.  v.  Mellon,  152 
Pa.  St.  286,  25  Atl.  597,  the  prelimi- 
nary injunction  was  applied  for  on 
bill,  answer,  and  supporting  affida- 
vits on  both  sides,  and  was  partly 
granted  and  partly  refused.  And  see 
AlcCulla  v.  Beadleston,  17  R.  I.  20, 
20  Atl.  11. 

92.  O'Brien  v.  Baltimore  Belt  R. 
Co.,  74  Md.  363,  22  Atl.  141;  Lynn 
v.  Mt.  Savage  Iron  Co.,  34  Md.  624.    J 

93.  Wilmington  Min.  Co.  v.  Allen. 
95  111.  288,  295. 

94.  Wagoner  v.  Wagoner,  26  Atl. 
284,  citing  Binney's  Case,  2  Bland 
Ch.  104. 

95.  Junction    City    School    Incor 


232 


Granting  of  Injunctions. 


§129 


a  written  instrument  to  which  complainant  has  ready  access,  it  or  a 
copy  ought  to  be  filed  with  the  bill.96 

§  129.  Same  subject;  federal  practice. — In  the  federal  courts 
on  filing  a  bill  for  a  perpetual  injunction  a  rule  to  show  cause 
may  be  served  on  defendant  requiring  him  to  show  cause  why  a 
preliminary  injunction  should  not  issue.97  The  application  may 
also  be  made  on  petition  and  affidavits,  and  ordinarily  a  rule  to 
show  cause.98  An  injunction  in  the  Federal  courts  is  sometimes 
granted  on  the  bill  and  defendant's  answer  and  on  defendant's 
cross-bill  and  plaintiff's  answer  to  that.99  Affidavits  to  corroborate 
the  bill  have  always  been  regarded  with  favor  in  the  federal  courts 
but  have  not  been  required  as  indispensable  to  the  granting  of  an 
injunction.1 


poration  v.  Trustees  of  School  Dist. 
No.  6,  81  Tex.  148,  16  S.  W.  742; 
Kelley  v.  Briggs,  58  Iowa,  332,  12 
N.  W.  299. 

96.  Mayor,  etc.,  of  the  City  of 
Baltimore  v.  Keyser,  72  Aid.  106,  115, 
19  Atl.  706. 

97.  In  Richmond,  etc.,  R.  Co.  v. 
Blake,  49  Fed.  904,  where  the  bill 
prayed  the  court  to  perpetually  en- 
join the  collection  of  taxes,  upon  the 
filing  of  a  bill  a  rule  to  show  cause 
was  issued  against  the  defendants  re- 
quiring them  to  show  cause  on  the 
first  day  of  the  next  term  and  in  the 
meantime  they  were   restrained. 

98.  Ex  parte  Huidekoper,  55  Fed. 
709. 

In  Ex  parte  Chamberlain,  55  Fed. 
704,  there  was  a  petition  for  an  in- 
junction to  restrain  a  sheriff  from 
detaining  property  which  he  had 
seized  while  in  the  possession  of  a 
receiver  and  which  had  been  illegally 
assessed  for  taxation, — per  Curiam: 
"  Upon  hearing  the  petition  a  rule  to 
show  cause  was  issued  and  served  on 


the  sheriff  with  the  usual  restraining 
order." 

In  Ex  parte  Tyler,  13  S.  C.  791,  a 
preliminary  injunction  was  granted 
on  the  bill  and  answer;  subsequently 
a  restraining  order  was  granted  on 
petition  and  an  order  to  show  cause 
was  required  to  be  served  on  defend- 
ant why  another  injunction  should 
not  be  granted;  subsequently  the  pe- 
titioner filed  a  supplemental  petition 
supported  by  numerous  affidavits  and 
the  injunction  was  finally  granted 
after  a  hearing  on  the  "petitions, 
rules  to  show  cause,  return  thereto, 
and  affidavits." 

99.  Marble  Company  v.  Ripley,  10 
Wall.   339,   19   L.  Ed.   955. 

1.  Schermerhorn  v.  L'Espenasse 
(1790),  2  Dall.  360,  where  an  injunc- 
tion on  a  bill  alone  was  sustained; 
but  a  power  of  attorney  was  before 
the  court  which  was  regarded  as  af- 
fording stronger  evidence  of  the 
transfer  in  issue  than  would  have 
been  afforded  by  the  affidavit  of  the 
interested  party. 


233 


§130 


Granting  of  Injunctions. 


§  130.  Motions  for  temporary  injunction. — In  Maine  it  is  ex- 
pressly provided  by  statute  that  "  an  injunction  may  be  granted 
pending  the  suit  in  proper  cases  upon  motion."  2  In  Michigan  the 
application  for  an  injunction  pending  the  suit  is  by  motion.5  And 
this  is  the  general  rule  as  to  temporary  injunctions  pending  a  suit 
and  particularly  where  the  injunction  is  auxiliary  merely  to  pre- 
serve the  existing  status  and  prevent  the  defendant  from  disposing 
of  property  during  the  suit  so  as  to  defeat  palintiff's  judgment.4 
A  preliminary  injunction  may  be  applied  for  in  infringement  suits 
on  motion  and  affidavits.5  A  temporary  injunction  can  be  obtained 
only  in  an  action  instituted  by  summons  and  complaint,  and, 
except  when  authorized  by  express  statutory  provisions,  cannot  be 
founded  on  petition.6  In  New  York  where  an  injunction  is 
granted  by  order,  the  application  for  such  order  is  by  motion,7  for 
the  application  for  an  order  in  the  course  of  an  action  is  defined  to 
be  a  motion.8     Under  the  former  chancery  practice  also  the  appli- 


2.  L.  1881,  ch.  68,  §  22. 

3.  Glidden  v.  Norvell,  44  Mich. 
202,  6  N.  W.  195. 

4.  Chatterton  v.  Kreitler.  2  Abb. 
N.  C.  453.  See  Safety  Electric  Co. 
v.  Creamer,  47  N.  Y.  St.  Rep.  214; 
Kennedy  v.  Kennedy,  24  N.  Y.  Supp. 
424;  Phillips  v.  Pullen,  45  N.  J.  Eq. 
157,   16  Atl.  915. 

5.  Williams  v.  McNeely,  56  Fed. 
265;  New  York  Belting  Co.  v.  Gutta 
Percha  Co.,  56  Fed.  264;  White  Den- 
tal Co.  v.  Johnson,  56  Fed.  262 ;  Ogle 
v.  Edge,  4  Wash.  C.  C.  584,  per 
Washington,  J. :  "I  take  the  rule 
to  be  in  cases  of  injunctions  in  pat- 
ent cases,  that  where  the  bill  states 
a  clear  right  to  the  thing  patented, 
which  together  with  the  alleged  in- 
fringement is  verified  by  affidavit,  if 
he  has  been  in  possession  of  it  by 
having  used  or  sold  it,  in  part  or  in 
the  whole,  the  court  will  grant  an 
injunction  and  continue  it  till  the 
hearing    or    further    order    without 


sending  the  plaintiff  to  law  to  try 
his  right.  But  if  there  appear  to  be 
a  reasonable  doubt  as  to  the  plain- 
tiff's right,  or  to  the  validity  of  the 
patent,  the  court  will  require  the 
plaintiff  to  try  his  title  at  law,  some- 
times accompanied  with  an  order  to 
expedite  the  trial,  and  will  permit 
him  to  return  for  an  account  in  case 
the  trial  at  law  should  be  in  his 
favor." 

6.  Manneck  Mfg.  Co.  v.  Manneck, 
23  Alb.  L.  J.  216,  per  Van  Vorst,  J.: 
"  The  Supreme  Court  has  no  juris- 
diction to  issue  an  injunction  .  .  . 
upon  a  verified  petition,  no  action 
having  been  commenced.  As  a  gen- 
eral rule  none  of  the  powers  apper- 
taining to  the  original  jurisdiction 
could  be  called  into  operation  until 
a  bill  had  been  filed." 

7.  Code  Civ.  Pro.,  §§  602,  609. 

8.  Code  Civ.  Pro.,  §  768.  "  A  mo- 
tion in  general  relates  to  some  inci- 
dental question  collateral  to  the  main 


234:' 


Granting  of  Injunctions. 


§131 


cation  on  the  prayer  of  the  bill  for  an  injunction  pendente  lite  was 
by  motion.9  In  New  York  if  an  application  for  an  injunction 
and  for  an  order  of  arrest  or  for  an  attachment  are  made  in  the 
same  action  the  court  may  require  the  applicant  to  select  between 
them.10  An  application  in  New  York  to  obtain  or  vacate  an  in- 
junction order  must  be  decided  by  the  court  or  judge  within  twenty 
days  after  it  is  submitted  for  decision.11 

§  131.  New  York  injunctions  formerly  on  petition. — The  pro- 
vision of  the  New  York  Revised  Statutes  which  prohibited  the 
granting  of  a  preliminary  injunction  until  the  bill  was  filed  (2 
E.  S.  179,  §  71),  and  which,  of  course  has  been  superseded  by  the 
Code  of  Procedure  of  1848,  as  amended,  related  only  to  cases  where 
the  court  obtained  jurisdiction  of  the  cause  by  a  bill.  There  was 
then  a  variety  of  cases  where  the  court  of  chancery  issued  an 
injunction  to  enforce  its  orders  and  decrees  without  any  bill  filed, 
and  on  a  petition  which  served  as  a  substitute  for  the  bill.12     And 


object  of  the  action.  Rensselaer,  etc., 
R.  Co.  v.  Davis,  55  N.  Y.  145.  A 
motion  is  not  a  remedy  in  the  sense 
of  the  Code,  but  it  is  based  upon 
some  remedy  and  is  always  connected 
with  and  dependent  upon  the  princi- 
pal remedy.  It  is  to  furnish  relief  in 
the  progress  of  the  action  or  pro- 
ceeding in  which  it  is  made."  Per 
Church,  C.  J.,  in  Matter  of  Jetter, 
78  N.  Y.  601.  The  injunction  order 
is  the  decision  of  the  motion  for  the 
injunction.  Bentley  v.  Jones,  4  How. 
Pr.  337. 

9.  New  York  v.  Mapes,  6  Johns. 
Ch.  46. 

10.  Code  Civ.  Pro.,  §  719. 

11.  Code  Civ.  Pro.,  §  719. 

12.  In  the  Matter  of  Hemiup,  2 
Paige,  316,  where  on  the  appearance 
of  the  parties  entitled  to  a  decedent's 
estate  a  temporary  injunction  was 
granted  to  Btay  proceedings  at  law 
until  the  question  as  to  the  fairness 


of  the  surrogate's  sale  was  deter- 
mined by  the  court.  The  chancellor 
said :  "  Whenever  this  court  has 
power  to  make  an  order  in  conse- 
quence of  having  jurisdiction  over 
the  subject  matter  of  the  suit  or  pro- 
ceeding, and  which  a  person  is  bound 
to  obey  in  consequence  of  his  being 
either  actually  or  constructively  a 
party  to  the  suit,  it  may  enforce  obe- 
dience to  such  order  by  the  process 
of  injunction,  under  the  seal  of  the 
court,  which  is  the  usual  way  of  giv- 
ing notice  of  its  orders  and  decrees 
to  those  who  are  not  actually  or  con- 
structively present  in  court.  Casa- 
major  v.  Strode,  1  Sim.  &  Stu.  381. 
This  practice  was  similar  to  that  of 
the  English  chancellor  in  bankruptcy 
who  used  to  enforce  obedience  to  his 
orders,  on  the  part  of  actual  or  con- 
structive parties,  by  process  of  in- 
junction under  the  great  seal.  Ex 
parte  Hardenbergh,  1  Rose,  204;   Ex 


235 


§132 


Granting  of  Injunctions. 


one  advantage  of  thus  granting  an  injunction  on  a  petition  in  the 
original  suit  was  the  saving  the  expense  of  a  new  bill.13  And 
ordinarily  a  party  to  a  suit  will  not  receive  injunctive  relief  in  a 
new  and  independent  action  which  he  might  obtain  by  petition  or 
motion  in  the  original  cause."  An  injunction  will  not  be  issued 
to  stay  proceedings  under  a  bill  or  decree  in  chancery,  whether  the 
application  is  made  by  parties,  privies,  or  strangers  to  the  original 
suit.  The  proper  mode  is  to  apply  by  petition  in  the  original  suit 
for  such  an  order  as  the  case  of  the  applicant  will  entitle  him  to.15 


§  132.  Special  prayer  for  injunction. — Under  the  New  York 
chancery  practice  in  order  to  obtain  a  preliminary  injunction  to 
restrain  defendant  pending  the  suit,  it  had  to  be  specially  prayed 
for  in  the  prayer  of  the  bill,  though  perhaps  a  final  injunction 
might  be  obtained  on  a  general  prayer  for  relief.16  And  in  a  recent 
case  in  Florida  it  is  decided  that  a  temporary  injunction  or  re- 
straining order  should  not  be  granted  unless  the  same  is  specifically 


parte  Pease,  1  Rose,  232;  Ex  parte 
Figes,  1  Glyn  &  J.  122;  Ex  parte 
Gould,  1  Glyn  &  J.  231. 

13.  Far  low  v.  Wilson,  11  Price, 
95;  Beauchamp  v.  Marquis  of  Hunt- 
ley, Jacob,  546;  Eden,  Injunctions, 
25. 

14.  Faison  v.  Mcllwaine,  72  N. 
C.  312;  Jarman  v.  Saunders,  64  N. 
C.  367 ;  Mason  v.  Miles,  63  N.  C.  564. 

15.  Smith  v.  American  L.  Ins.  & 
Trust  Co.    (1840),  Clarke's  Ch.  307. 

16.  Walker  v.  Devereaux,  4  Paige, 
229,  248.  See,  also,  Thompson  v. 
Maxwell,  16  Fla.  773.  In  Wilmington 
Min.  Co.  v.  Allen,  95  111.  288,  the 
court  said:  "  It  is  objected  that  the 
bill  was  for  a  temporary  injunction 
only  and  that  it  was  error  to  make 
the  injunction  perpetual,  there  being 
no  such  relief  prayed.  The  prayer 
was  for  an  injunction  pending  the 
proceedings  and  until  the  further  or- 


der of  the  court.  If  the  court  in  de- 
creeing the  injunction  was  satisfied 
there  should  never  be  any  further  or- 
der to  the  contrary  of  the  injunction 
the  court  might,  we  think,  not  im- 
properly under  the  prayer  of  the  bill, 
make  the  injunction  perpetual.  If 
there  was  reason  for  an  injunction  in 
the  case,  there  was  the  same  reason 
for  its  being  perpetual.  We  regard 
this  objection  as  relating  to  mere 
matter  of  form."  In  Wood  v.  Bea- 
dell,  3  Sim.  273,  an  injunction  was 
asked  for  in  the  general  prayer  of 
the  bill  but  no  preliminary  injunc- 
tion was  asked  for  in  the  prayer  for 
process  and  was  therefore  refused. 
The  complainant  was,  however,  per- 
mitted to  renew  his  application  on 
an  amended  bill.  See,  also,  Savory 
v.  Dyer,  Amb.  70;  Daville  v.  Pea- 
cock, Barnard,  Ch.  25. 


236 


Granting  of  Injunctions.  §  133 

prayed  for  in.  the  bill.17  The  rule  is  substantially  the  same  in 
courts  of  New  Jersey  equity,  but  the  omission  to  pray  specially 
for  the  injunction  may  be  cured  by  amendment.18  Where  the  only 
relief  sought  is  injunctive  the  bill  must  specifically  pray  for  an  in- 
junction or  it  will  be  dismissed  on  demurrer.19  The  Georgia  rule 
is  that  a  perpetual  injunction  cannot  be  decreed  unless  it  is  prayed 
for  in  the  bill.20 

§  133.  Temporary  injunction  pending  an  action  for  a  per- 
manent.— In  New  York,  in  a  case  where  the  right  to  an  injunction 
depends  upon  the  nature  of  the  action,  the  plaintiff  may  have  a 
temporary  injunction  during  the  pendency  of  the  action,  where  it 
appears  from  the  complaint  that  the  plaintiff  demands  and  is 
entitled  to,  as  his  final  relief,  a  permanent  injunction  against 
defendant,  and  that  the  commission  or  continuance  of  the  act  com- 
plained of,  during  the  action,  would  be  injurious  to  plaintiff.21 
But  in  such  a  case  if  the  complaint  shows  no  cause  of  action  for 
final  relief  by  injunction  it  is  error  of  law  to  grant  a  temporary 
injunction;22  and  the  cause  of  action  as  set  forth  in  the  complaint 
for  an  injunction  cannot  be  enlarged  by  the  accompanying  affi- 

17.  Savage  v.  Parker  (Fla.  1907),  process  of  injunction,  the  process 
44  So.  507.  cannot  be   granted.      Union   Bank  v. 

18.  African  M.  E.  Church  v.  Con-  Kerr,  2  Md.  Ch.  460."  See,  also,  Wil- 
over,  27  N.  J.  Eq.  157.  If  an  injunc-  lett  v.  Woodhams,  1  III.  App.  411. 
tion  is  prayed  for  in  the  bill,  but  is  It  is  expressly  provided  in  Maine 
omitted  in  the  prayer  for  process,  an  that  "  no  preliminary  injunction 
injunction  ought  not  to  issue  with-  shall  be  granted  to  either  party  un- 
out  an  amendment  of  the  bill.  Bai-  less  his  pleadings  contain  an  applica- 
ley  v.  Stiles,  3  N.  J.  Eq.  245.  tion  therefor;  but  an  injunction  may 

19.  Lewiston  M'f'g  Co.  v.  Franklin  be  granted  pending  the  suit  in  proper 
Co.,  54  Me.  402,  per  Appleton,  C.  J. :  cases  upon  motion  and  hearing."  L. 
"An    injunction   will    not   ordinarily  1881,  ch.  68,  §  22. 

be  granted  under  a  prayer  for  gen-  20.  Jefferson  v.  Hamilton,  69  Ga. 

eral    relief.      It   must   be   specifically  401. 

prayed    for.       Story,    Eq.    PL,    §    41.  21.  Code  Civ.  Pro.,  §  603. 

The  prayer  for   an   injunction   must  22.  McHenry  v.  Jewett,  90  N.  Y. 

not  only   be  in  the  prayer   for  relief  58;    Selchow  v.  Baker,   93  N.   Y.   59. 

but  in  the  prayer  for  process.     When  Perhaps  the  rule  before  the  Code  was 

a  bill  prays  for  relief  by  way  of  in-  less  strict  than  since.    Hartt  v.  Har- 

j  unction  but  does  not  pray  for   the  vey,  32  Barb.  55,  68. 

237 


§  134  Granting  of  Injunctions. 

davits;23  and  to  entitle  plaintiff  to  a  temporary  injunction  the  com- 
plaint must  show  that  he  is  entitled  to  it  during  the  pendency  of  the 
action.24  So,  too,  in  the  federal  courts  a  preliminary  injunction 
will  not  be  granted,  where,  on  the  same  allegations  and  proofs  at 
the  final  hearing,  a  final  injunction  would  not  be  granted.25  The 
rule  that  a  motion  for  an  injunction  would  not  be  granted,  unless 
an  injunction  was  demanded  in  the  bill,  existed  in  England  ;26  but 
was  subject  to  a  few  exceptions.27  An  applicant  for  a  temporary 
injunction  under  the  New  York  Code,  must  move  on  affidavit,  as  a 
verified  complaint  is  not  enough  ;M  unless,  at  all  events,  the  allega- 
tions of  the  complaint  are  positive  and  not  on  information  and 
belief.29  A  preliminary  injunction  cannot  be  sustained  by  facts 
occurring,  as  for  example,  defendant's  insolvency,  after  the  service 
of  the  complaint.30 

§  134.  Temporary  injunction  for  extrinsic  cause. — The  New 
York  Code  authorizes  the  granting  of  a  temporary  injunction  in  an 
action  where  it  appears  by  affidavit  that  the  defendant  is  about  to 
do  an  act  in  violation  of  plaintiff's  rights  respecting  the  subject  of 
the  action  and  tending  to  render  the  judgment  ineffectual,  or  is 
about  to  remove  or  dispose  of  his  property  with  intent  to  defraud 
the  plaintiff.31  In  order  that  an  act  should  be  restrained  under 
the  section  just  alluded  to,  it  must  be  violative  of  plaintiff's  rights 
respecting  the  "  subject  of  the  action,"  and  the  general  property  of 
defendant  may  often  not  be  the  subject  of  the  action ;  thus  it  would 

23.  DeLacy  v.  Adams,  52  N.  Y.  St.       was  asked  for  by  the  bill.     See,  also, 
Rep.  509.  Barlow  v.  Gains,  8  Beav.  329;  Wright 

24.  Cushing  v.  Ruslander,  49  Hun,       v.  Atkyns,  1  Ves.  &  B.  313. 

19,   1  N.  Y.  Supp.  505.  28.  Chatterton  v.  Kreitler,  2  Abb. 

25.  International     Tooth     Crown      N.  C.  453. 

Co.  v.  Mills,  22  Fed.  659.  29.  Cushing  v.  Ruslander,  49  Hun, 

26.  Wood    v.    Beadell,    3    Simons,  19,  23,   1   N.    Y.    S.    505,    and  cases 
273.  cited.     See,  also,  Stow  v.  Chapin,  21 

27.  Blomfield  v.  Eyre,  8  Beav.  250,  N.  Y.  St.  Rep.  38;  Rome,  etc.,  R.  Co. 
259.     In  Goodman  v.  Kine,  8   Beav.  v.  Rochester,  46  Hun,  149. 

379,  a  mortgagor  in   possession  was  30.    American     Water     Works    v. 

restrained   by   injunction   from    com-       Venner,  45  N.  Y.  St.  Rep.  441. 
mitting  waste  though  no  injunction  31.  Code  Civ.  Pro.,  §  604. 

238 


Granting  of  Injunctions. 


§134 


be  a  startling  doctrine  to  hold  that  a  plaintiff,  on  commencing  an 
action  on  an  account  against  a  trader,  could  procure  an  injunction 
to  restrain  him  from  selling  goods  pending  the  action.32  So,  too, 
under  section  3388  of  the  Iowa  Code,  which  is  quite  similar  to 
section  604  of  the  New  York  Code,  a  temporary  injunction  will 
not  be  granted  unless  the  act  complained  of  is  violative  of  plaintiff's 
rights  respecting  the  "  subject  of  the  action,"  or  tends  to  render 
ineffectual  any  judgment  he  may  recover  in  the  pending  action.33 


32.  Campbell  v.  Ernest,  64  Hun, 
188,  19  N.  Y.  S.  123;  Glen  MTg  Co. 
v.  Hall,  61  N.  Y.  226,  233. 

33.  Dubuque  &  S.  C.  Ry.  Co.  v. 
Cedar  Falls  &  M.  Ry.  Co.,  76  Iowa, 
702,  39  N.  W.  691,  Reed.  J.:  "  Com- 
ing then  to  the  question  before  us, 
we  have  to  say  that  in  our  opinion 
the  original  petition  does  not  make  a 
case  for  the  allowance  or  continuance 
of  an  injunction.  The  injunction 
prayed  for  and  allowed  is  a  tempo- 
rary writ  restraining  defendant 
merely  from  instituting  any  suit  at 
law  for  the  collection  of  the  rent  dur- 
ing the  pendency  of  the  equity  ac- 
tion. The  conditions  upon  which  a 
temporary  injunction  may  be  al- 
lowed are  prescribed  by  statute.  Sec- 
tion 3388  of  the  Code  is  as  follows: 

'  When  it  appears  by  the  petition 
therefor  that  the  plaintiff  is  entitled 
to  the  relief  demanded,  and  such  re- 
lief or  any  part  thereof  consists  in 
restraining  the  commission  or  con- 
tinuance of  some  act,  which  would 
produce  great  or  irreparable  injury 
to  the  plaintiff,  or  when  during  liti- 
gation it  appears  that  defendant  is 
about  to  do  some  act  in  violation  of 
plaintiff's  rights  respecting  the  sub- 
ject of  the  action,  and  tending  to 
render  the  judgment  ineffectual,  a 
temporary  injunction  may  be  granted 
to   restrain   such    act.'      Under   this 


provision  some  act  must  be  done  or 
threatened     which      would      produce 
great  or  irreparable    injury    to    the 
plaintiff,   and   is   in   violation   of   his 
right  respecting  the  subject  of  the  ac- 
tion, or  which  would  tend  to  render 
ineffectual    any    judgment    he    might 
recover  in  the  proceedings.     In  other 
words  it  must  be  shown  that  the  writ 
is  essential    to    the    preservation  or 
protection  of  some  right  of  the  plain- 
tiff with  reference  to  the  subject  of 
the  action.    Now  the  relief  demanded 
by  plaintiff  is  the  rescission  or  can- 
cellation  of   the    contract,    upon    the 
ground    of    the    fraudulent    purposes 
of  its  officers  when  they  entered  into 
it,   and   that   the   steps   necessary   to 
bind  the  corporation  have  never  been 
taken.      To   entitle   plaintiff   to   that 
relief  it  must  establish  not  only  the 
fraud  alleged  in  the  inception  of  the 
contract,  but  that  it  has  surrendered 
or  offered  to  surrender  the  property; 
for   it  appears  by   the   averments   of 
the  petition  that  it  has  been  in  pos- 
session since  the  termination  of  the 
lease    to    the    Illinois    Central    Com- 
pany.    But  it  is  averred  that  when 
plaintiff  discovered  the  fraud,  which 
was    the    termination    of    the    last- 
named  lease,  it  declared  its  election 
to    terminate    the   contract   and    ten- 
dered  back    the   property.      For    the 
purposes  of  the  case  then  it  is  con- 


239 


§135 


Granting  of   Injunctions. 


§  135.  Same  subject. — Where  an  injunction  is  not  the  ultimate 
purpose  of  the  suit  and  the  temporary  injunction  is  for  a  ground 
extrinsic  to  the  cause  of  action,  it  is  not  essential  that  the  injunc- 
tion be  asked  for  in  the  complaint  ;34  it  may  be  granted  on  affidavits 
without  a  complaint.35  The  injunctions  granted  under  section  604 
of  the  New  York  Code  are  for  the  most  part  to  prevent  a  threatened 
fraudulent  alienation  by  the  defendant  of  his  property  during  the 


ceded  that  by  the  averments  it  shows 
itself  entitled  to  that  relief.  But  the 
facts  relied  upon  are  available  in  de- 
fense of  an  action  at  law  on  the  con- 
tract for  the  enforcement  of  the  rent. 
It  would  be  a  good  defense  in  such 
an  action  that  the  contract  was  void- 
able, because  of  fraud  in  its  incep- 
tion, and  that  the  one  against  whom 
it  was  sought  to  be  enforced  had 
upon  a  discovery  of  the  fraud  sought 
to  rescind  by  ofFering  to  return  what 
he  had  received  under  it.  The  insti- 
tution of  a  suit  at  law  then  would 
not  produce  any  irreparable  injury 
to  plaintiff;  nor  would  it  be  a  vio- 
lation of  his  right  relating  to  the 
subject  of  the  action,  nor  render  in- 
effectual the  judgment  he  may  re- 
cover in  it.  The  case  upon  its  facts 
is  within  the  holding  of  the  court  in 
Smith  v.  Short,  11  Iowa,  523.  It  is 
not  governed  by  Stewart  v.  John- 
ston, 44  Iowa,  435;  Brigham  v. 
White,  44  Iowa,  677,  and  the  other 
cases  in  this  court  which  hold  that 
when  fraud  is  the  gravaman  of  the 
petition,  the  injunction  will  not  be 
dissolved  upon  a  mere  denial  of  the 
allegations  of  fraud,  but  will  be  con- 
tinued until  the  final  determination 
of  the  issue.  In  each  of  those  cases 
the  continuance  of  the  injunction 
was  necessary  for  the  preservation  of 
the    rights    claimed   by    the   plaintiff 


in  the  subject  of  the  action." 

34.  Safety  Electric,  etc.,  Co.  v. 
Creamer,  47  N.  Y.  St.  Rep.  214.  The 
court:  "It  is  entirely  clear,  under 
section  603  of  the  Code,  that  where 
an  injunction  is  the  ultimate  pur- 
pose of  the  action,  and  is  the  relief 
to  be  awarded  by  final  decree,  the 
complaint  must  not  only  set  forth 
the  facts  but  the  demand  for  an  in- 
junction must  also  be  made  therein. 
But  an  examination  of  the  complaint 
in  this  action  will  disclose  that  that 
is  not  the  nature  of  the  action  at 
all.  This  bill  is  filed  simply  for  an 
accounting.  The  plaintiff  merely 
asks  for  an  adjudication  of  the  mat- 
ters in  dispute  between  it  and  the 
defendant  with  reference  to  the  de- 
fendant's right,  in  the  first  place,  to 
royalties  at  all,  and  in  the  second 
place,  if  the  right  exists  as  to  the 
amount.  .  .  .  But  as  in  the  mean- 
time the  enforcement  of  that  provi- 
sion of  the  contract  which  would 
cause  the  forfeiture  would  destroy 
all  the  plaintiff's  rights,  the  injunc- 
tion is  asked  for  by  reason  of  that 
circumstance,  which  is  really  extrin- 
sic to  the  plaintiff's  cause  of  action, 
although  the  plaintiff  sets  forth  in 
the  complaint  the  facts  which  neces- 
sitate the  taking  of  the  account." 

35.  Continental  Store  Co.  v.  Clark, 
7  N.  Y.  Civ.  Pro.  183. 


240 


Granting  of  Injunctions. 


§136 


action.36    Under  the  New  York  Code  an  injunction  can  be  granted 
only  in  an  action  and  never  on  petition.37 

§  136.  Affidavits — An  affidavit  for  an  injunction  to  the  effect 
that  the  contents  of  the  petition  are  true  as  the  affiant  believes  is 
sufficient.38  Under  the  provision  of  the  New  York  Code  that  a 
temporary  injunction  may  be  granted  where  it  appears  by  the 
affidavit  of  the  plaintiff,  or  any  other  person,  that  sufficient  grounds 
exist  therefor,39  it  is  well  settled  that  an  affidavit  on  mere  informa- 
tion and  belief,  and  without  the  supporting  affidavits  of  the  in- 
formants, is  not  sufficient.40  And  this  is  the  general  rule.41  A 
preliminary  injunction  should  not  be  granted  on  a  bill  sworn  to  on 
information  and  belief,  and  unaccompanied  by  affidavit  of  the 
facts  from  the  person  from  whom  the  information  and  belief  were 
derived ;  and  an  admission  by  defendant  in  his  answer  or  affidavit 


36.  Peet  v.  Hatcher,  13  Civ.  Pro. 
449;  Jerome  Co.  v.  Loeb,  59  How. 
Pr.  508;  Malcolm  v.  Miller,  6  How. 
Pr.  456;  Vermilyea  v.  Vermilyea,  14 
How.  Pr.  470. 

37.  First  Nat.  Bank  v.  Navarro,  17 
N.  Y.  Supp.  900,  construing  Code 
Civ.  Pro.,  §§  603,  604. 

38.  Kelley  v.  Briggs,  58  Iowa,  332, 
12  N.  VV.  299. 

A  general  affidavit  is  suffi- 
cient.— Thrall  v.  Williamsport,  4 
Pa.  Super.  Ct.  165. 

39.  Code  Civ.  Pro.,  §  607. 

40.  Campbell  v.  Ernest,  64  Hun, 
188,  19  N.  Y.  S.  123. 

Where  the  injunction  does  not 
depend  on  the  nature  of  the  action 
an  affidavit  is  sufficient.  Woodburn 
v.  Hyatt,  34  App.  Div.  (N.  Y.)  246, 
54  N.  Y.  Supp.  597. 

Allegations  on  information 
and  belief  of  an  intent  to  make 
a  corrupt  appointment  not  stat- 
ing the  sources  of  information  and 
referring    to    the    persons    to    be    ap- 


pointed only  as  "  certain  persons," 
are  too  indefinite  to  sustain  an  in- 
junction. Roosevelt  v.  Mayor,  1 
How.   N.   S.  205. 

In  Michigan,  a  preliminary  in- 
junction should  not  be  granted  where 
the  bill  is  not  sworn  to  as  true  to 
affiant's  personal  knowledge.  Manis- 
tique  Lumbering  Co.  v.  Lovejoy,  55 
Mich.  189,  20  N.  W.  899.  The  verifi- 
cation may  be  amended  when  the 
motion  is  heard.  Glidden  v.  Norvell, 
44  Mich.  202. 

In  New  Jersey,  in  bills  for  in- 
junction charging  fraud  and  praying 
a  discovery,  or  in  any  case,  where, 
in  the  nature  of  things,  positive  proof 
cannot  be  expected,  the  additional 
verification  may  be  dispensed  with, 
and  the  injunction  may  issue  on  the 
affidavit  of  complainant  founded  on 
belief  alone.  Youngblood  v.  Schamp, 
15  N.  J.  Eq.  42. 

41.  Kane  v.  Montreal  Tel.  Co.,  20 
Lower  Can.  Jur.  120. 


241 


10 


§  137 


Granting;  ok  Injunctions. 


of  a  material  fact  alleged  in  the  hill  does  not  cure  the  defect,  when 
thi  re  are  other  material  facts  unadmitted  and  unverified.42  Where 
the  affidavit  upon  which  an  injunction  order  is  granted  is  not  made 
by  the  plaintiff  but  by  his  attorney  and  states  no  reason  why  the 
plaintiff  did  not  make  tho  affidavit,  this  constitutes  a  fatal  defect.*3 

§  137.  Conflicting  affidavits,  etc.— When  the  affidavits  on  which 
a  temporary  injunction  is  asked  are  denied,  under  oath,  in  such 
manner  as  to  leave  their  truth  in  serious  doubt,  tin-  injunction 
must  be  denied,  unless  it  clearly  appears  that  to  grant  it  will  do 
defendant  no  serious  harm,  while  its  refusal  will  deprive  com- 
plainant of  all  relief  should  he  finally  succeed  in  his  cause,  or  sub- 
ject him  to  some  other  peculiar  hardship.44  A  preliminary  injunc- 
tion will  be  refused  where  the  affidavits  are  so  conflicting,  and  the 
defendant's  are  so  much  more  circumstantial  and  conclusive  than 
the  plaintiff's,  that  the  court  does  not  find  any  well-grounded  appre- 
hension of  immediate  injury  to  plaintiff's  interests  and  property.45 


42.  Ruge  v.  Apalachicola  Oyotor 
Co.,  25  Fla.  656,  6  So.  489;  Ballard 
v.  Eckman,  20  Fla.  661.  See,  also, 
Alspaugh  v.  Adams,  80  Ga.  345,  5 
S.  E.  496,  where  it  was  held  that 
though  the  verification  of  the  bill 
by  the  affidavits  of  counsel  was  not 
sufficient,  they  not  swearing  posi- 
tively, the  affidavit  of  others  pro- 
duced at  the  hearing  supplied  the 
lack.  See,  also,  Campbell  v.  Morri- 
son,  7  Paige,  157;  Bank  of  Orleans 
v.  Skinner,  9  Paige,  305;  Livingston 
v.  New  York  Bank,  26  Barb.  304. 
Where  the  respondent  concedes  facts 
which  if  proved  at  the  final  hearing 
would  require  a  decree  in  favor  of 
the  petitioners,  it  is  within  the 
power  of  the  presiding  judge,  in  the 
exercise  of  his  discretion,  to  order  a 
preliminary  injunction.  Carleton  v. 
Rugg,  149  Mass.  551,  22  N.  E.  55. 

43.  Terry  v.  Green,  53  Misc.  R. 
(N.   Y.)    10,    103   N.  Y.   Supp.    1014, 


citing  Talbert  v.  Storum,  21  N.  Y. 
Supp.  719;  Pach  v.  Geoff roy.  19  N.  Y. 
Supp.  S83;  Clark  v.  Sullivan,  8  N.  Y. 
Supp.   565. 

44.  Connelly  M'f'g  Co.  v.  Wattles, 
49  N.  J.  Eq.  92,  23  Atl.  123;  an  in- 
junction on  the  ground  of  fraud 
should  not  be  granted  where  the  al- 
legations are  on  information  and  be- 
lief, and  the  sources  of  information 
not  given,  and  there  are  two  affida- 
vits denying  the  fraud.  Perry  v. 
Volkening,  44  N.  Y.  Super.  Ct.  332. 

45.  Where  the  averments  of  the 
bill  are  met  by  a  full,  explicit  and 
circumstantial  denial  in  the  answer, 
the  general  rule  directs  that  a  pre- 
liminary injunction  shall  be  denied. 
West  Jersey  R.  Co.  v.  Cape  May,  etc., 
R.  Co.,  34  N.  j.  Eq.  164.  Even 
though  the  bill  disclose  clear  ground 
of  equitable  relief.  Van  Houten  v. 
First  Reformed  Church,  17  N.  J.  Eq. 
127.  Rend  v.  Venture  Oil  Co.,  48  Fed. 


242 


Grafting  of  Injunctions. 


§  138 


The  courts  will  not  take  judicial  notice  of  the  opinions  of  experts 
not  verified  by  affidavit.46 

§  138.  Substitute  for  affidavits. — On  petition  for  an  injunction, 
where  there  is  no  answer  to  the  merits  after  the  demurrer  to  the 
petition  is  overruled,  it  is  proper  to  grant  the  injunction  without 
requiring  proof  of  the  allegations  of  the  petition,47  for  the  effect  of 
the  demurrer  is  to  admit,  as  well  the  plaintiff's  allegations  made 
on  information  and  belief,  as  those  which  are  positive.48     An  in- 


248.  where  plaintiff  in  his  affidavits  al- 
leged several  serious  dangers  which 
would  result  to  property  and  life 
from  the  drilling  of  oil  wells  through 
coal  mines;  and  defendant  in  his  af- 
fidavits showed  that  from  the  50,000 
cases  of  such  drilling  no  disaster  to 
person  or  property  had  ever  resulted, 
the  injunction  to  restrain  the  drilling 
was  refused.  A  preliminary  injunc- 
tion should  not  issue  in  a  suit  for 
infringement  of  a  patent  where  upon 
the  issue  of  priority  of  invention  the 
evidence  is  merely  oath  against  oath. 
Mack  v.  Spencer,  44  Fed.  346.  It  is 
the  general  rule  that  when  the  equity 
of  the  complainant  is  disproved  by 
the  answer  and  affidavits,  a  prelim- 
inary injunction  is  not  proper.  Cit- 
izens' Coach  to.  v.  Camden  Horse  R. 
Co.,  29  N.  J.  Eq.  299;  New  Jersey 
Zinc  Co.  v.  Franklin  Iron  Co.,  29  N, 
J.  Eq.  422,  431.  And  generally  a 
preliminary  injunction  will  not  be 
granted  where  the  right  of  the  com- 
plainant depends  upon  an  unsettled 
question  of  law.  Citizens'  Coach  Co. 
v.  Camden  Horse  R.  Co..  29  N.  J.  Eq. 
299.  A  preliminary  injunction  to  re- 
strain a  carrier  from  disobeying  an 
order  of  the  Interstate  Commerce 
Commission  will  not  be  granted  in 
proceedings  under  section  16,  24  St. 
at  Large,  p.   384,   as  amended,  when 


the  answer  denies  the  facts  on  which 
the  order  was  based.  Interstate 
Commerce  Commission  v.  Lehigh  Val. 
R.  Co.,  49  Fed.  177.  But  see  Mc- 
Enroe v.  Decker,  58  How.  Pr.  250, 
construing  §  630  of  N.  Y.  Code  of 
Procedure. 

46.  Finger  v.  City  of  Kingston,  29 
N.  Y.   St.  Rep.   702. 

47.  Junction  City  School  Incorpo- 
ration v.  Trustees  of  School  Dist.  No. 
6,  81  Tex.  148,  16  o.  VV.  742. 

48.  In  Gibson  v.  Gibson,  46  Wis. 
449,  462,  1  N.  W.  147.  the  objection 
to  the  preliminary  injunction  was 
that  many  of  the  allegations  of  the 
complaint  upon  which  a  permanent 
injunction  was  prayed  for  were  not 
stated  positively  but  on  information 
and  belief,  the  court  said:  "The 
i.riswers  to  this  objection  are:  first, 
that  the  defendant  by  demurring  to 
the  complaint,  has  admitted  not  only 
the  allegations  that  are  stated  posi- 
tively, but  also  those  which  are  stated 
on  information  and  belief;  and  sec- 
ond, that  the  injunction  wae  issued 
after  notice  of  the  motion  for  the 
same  served  upon  defendant.  This 
court  has  decided  that  in  such  a  case 
if  the  defendant  does  not,  by  his  own 
affidavit  or  answer  or  other  proof, 
deny  the  allegations  of  the  complaint, 
all  the  allegations  in  the  complaint, 


243 


§  L39  Granting  of   Injunctions. 

definite  and  imperfect  complaint  or  bill  may  be  cured  by  the  de- 
fendant's admissions.49  The  parties  may  stipulate  that  other  evi- 
dence, for  example,  testimony  taken  by  a  commissioner  in  con- 
d(  innation  proceedings,  shall  have  the  force  of  affidavits  on  an 
implication  for  injunction.50  Where  the  bill  for  injunction  waives 
the  respondent's  oath,  an  answer  under  oath  denying  all  the  equities 
of  the  bill,  can,  under  the  amendment  to  equity  rule  41,  be  used 
at  the  hearing  with  the  probative  force  of  an  affidavit  alone,  and 
whether  the  injunction  should  issue  must  be  determined  on  the 
whole  evidence  submitted.61  In  New  York,  an  injunction  may 
now  be  granted  on  a  verified  complaint,  and  in  such  a  case  plain- 
tiff's right  to  injunctive  relief  depends  upon  the  establishment  of 
the  facts  therein  pleaded.62  If  a  bill  for  an  injunction  be  filed,  the 
defendant  may  put  in  an  answer  and  use  it  on  the  hearing  of  the 
application  as  an  affidavit.63 

§  139.  Additional  evidence;  secondary  evidence. — It  is  discre- 
tionary with  the  judge  sitting  at  chambers,  upon  an  application 
for  injunction,  to  re-open  the  case  for  more  testimony,  upon  dis- 
covery of  additional  witnesses  by  one  of  the  parties  after  argument, 
and  while  holding  up  the  matter  for  decision.64     When  either  party 


as  well   those   stated  on   information  61.  United     States     v.     Working- 

and  belief  as  those  positively  averred,  men,  etc.,  54  Fed.  994. 

must  be  taken  to  be  true  for  the  pur-  62.  Manufacturers'   Bank  v.   Folk, 

pose    of     sustaining     the    injunction.  50  N.  Y.  St.  Rep.  802. 

Dinehart   v.   Town   of   LaFayette.    19  63.  Hardenburgh  v.  Farmers,  etc., 

Wis.  679."  Bank,  3  N.  J.  Eq.  68. 

49.  Where,  in  an  action  to  obtain  64.  Electric  R.  Co.  v.  Savannah  R. 
a  perpetual  injunction,  the  plaintiff  Co.,  87  Ga.  261,  13  S.  E.  512.  In 
appears  to  be  acting  in  good  faith.  analogy  with  the  rule  laid  down  in 
and  sets  out  a  prima  fade  case,  and  Warren  v.  Bunch,  80  Ga.  124.  7  S.  E. 
the  defendant  confesses  and  avoids  270;  and  see  Huff  v.  Markham,  70 
the  allegations  of  the  complaint,  and  Ga.  284;  Boyce  v.  Burchard,  21  Ga. 
answers  only  on  information  and  be-  74.  When  an  injunction  is  applied 
lief,  the  injunction  should  be  con-  for.  the  facts  need  not  be  proved  by 
tinued  to  the  hearing.  Turner  v.  the  affidavit  of  the  complainant. 
Cuthrell.  94  i\.  C.  239.  When    the     material     facts     are    not 

50.  Stahl  v.  Pennsylvania  Co.,  155  within  his  knowledge,  they  should  be 
Pa.  St.  309,  26  Atl.  437.  verified  by  the  oath  or  affirmation  of 

244 


Granting  of   Injunctions.  §  140 

on  motion  for  a  preliminary  injunction  desires  to  take  the  testi- 
mony of  an  unwilling  witness,  application  should  be  made  to  the 
court  and  notice  given  to  the  other  side.  The  motion  should  be  in 
writing,  and  should  set  forth  the  name  or  names  of  the  witnesses 
and  briefly  the  purpose  for  which  they  are  to  be  called.  The  court 
should  then,  if  the  application  is  a  proper  one,  appoint  an  examiner 
to  take  such  testimony,  due  notice  to  be  given  to  the  other  side,  who 
should  have  the  right  of  cross-examination.65  On  the  hearing  of 
an  injunction  the  question  of  receiving  secondary  evidence  is  some- 
what discretionary  with  the  presiding  judge.  He  need  not  require 
absolutely  that  all  means  of  discovering  the  primary  evidence  be 
exhausted.66 

§  140.  Granting  injunction  before  bill  filed. — In  England  in- 
terim injunctions  have  sometimes  been  granted  in  very  urgent 
cases  before  bill  filed.67  It  is  said  that  the  practice  of  granting 
injunctions  before  the  filing  of  the  bill  has  been  quite  common  in 
the  counties  of  Maryland,  though  there  was  a  rule  prohibiting  such 
a  practice  in  the  Maryland  chancery;  the  omission  so  to  file  is 

some  person  who  has  a  knowledge  of  Malins.  V.  C,  gave  leave  to  serve  de- 

the  facts,  or  duly  verified  copies  of  pri-  fendant  with  notice  of  motion  for  the 

vate   instruments   or   of   records  may  next  morning,   at   the   sitting   of  the 

be   annexed  to  the  bill  when  such   is  court,  and  granted  an  interim  injunc- 

the      appropriate      mode      of      proof.  tion    to    restrain    the    receipt    of    the 

Youngblood  v.  Schamp,   15  N.  J.  Eq.  purchase  money,  on  the  plaintiff  giv- 

42.  ing.   in  addition  to  the  usual  under- 

65.  Hammerschlag  M'f'g  Co.  v.  taking  an  undertaking  1o  file  the  bill 
Judd,  26  Fed.  292.  and  affidavit  in  the  course  of  the  day. 

66.  Davis  v.  Covington  &  M.  R.  In  Carr  v.  Morice,  L.  R.  16  Eq.  125, 
Co.,  77  Ga.  322,  2  S.  E.  555.  an  application  for  an  injunction  was 

67.  Thornloe  v.  Skoines,  L.  R.  16  made  on  a  holiday  to  the  vice  chan- 
Eq.  126.  In  this  case  a  motion  was  cellor,  at  his  residence,  to  restrain  a 
made,  ex  parte,  for  an  interim  in-  transaction  at  the  Stock  Exchange, 
junction,  to  restrain  a  sale.  A  draft  and  the  bill  could  not  be  filed  because 
bill  had  been  prepared  and  its  state-  the  court  offices  were  closed.  The 
ments  verified  by  affidavit;  but  it  was  chancellor  granted  the  injunction,  re- 
stated that  the  sale  was  expected  to  taining  the  copy  bill,  and  had  it  filed 
be  completed  within  an  hour,  and  on  the  next  court  day  as  if  filed  on 
that  there  had  not  been  time  to  pre-  the  day  when  the  injunction  was 
pare    a    copy   of    the    bill    for    filing.  granted. 

245 


§  141  Granting  of  Injunctions. 

deemed  a  mere  irregularity  for  which  the  order  ought  not  to  be 
reversed.68  The  same  practice  of  granting  injunctions  before  bill 
filed  has,  to  some  extent,  been  adopted  in  Vermont,"  but  not  in 
Wisconsin;  and  under  the  code  of  that  State  an  injunction  order 
cannot  be  granted  in  a  suit  before  complaint,  and  on  mere  affi- 
davits ;70  nor  can  the  court,  on  sustaining  a  demurrer  to  the  com- 
plaint, grant  leave  to  amend  the  complaint,  and  continue  the 
injunction  in  the  meantime,  for  in  such  case  the  injunction  has 
nothing  to  rest  upon  but  the  affidavits.71  The  former  New  York 
rule  was  that  an  injunction  should  not  be  granted  upon  a  bill  which 
is  bad,  on  demurrer,  even  in  point  of  form.72  Where,  however,  an 
order  to  amend  an  injunction  bill  was  obtained  before  appearance, 
it  was  held  in  New  York  chancery  that  the  injunction  continued 
in  force,  though  the  order  giving  leave  to  amend  was  silent 
as  to  the  continuance  of  the  injunction.73  The  general  rule  is  that 
injunctions  can  issue  only  on  bill  filed,  and  with  a  proper  prayer 
therefor;  it  was  no  doubt  originally  so  in  England,  for  it  was  one 
of  the  articles  of  impeachment  against  Cardinal  Wolsey,  as  chan- 
cellor, that  he  had  granted  injunctions  without  bill  put  in.74 

§  141.  Same  subject. — Under  the  New  York  Code,  section  608, 
the  injunction  order  may  be  granted  to  accompany  the  summons, 
or  at  any  time  after  the  commencement  of  the  action  and  before 
final  judgment.  In  December,  1892,  it  was  held  by  a  closely 
divided  Court)  of  Appeals  that  said  section  608  was  not 
limited  to  injunction  order?  granted  under  section  603,  authorizing 
them,  where  it  appears  from  the  complaint  that  the  plaintiff  de- 
mands and  is  entitled  to  judgment,  restraining  the  commission  of 
some  act  injurious  to  him,  during  the  pendency  of  the  action,  but 
applies  as  well  to  orders  granted  under  section  604,  authorizing 
them,  "  where  it  appears,  by  affidavit,  that  the  defendant,  during 
the  pendency  of  the  action,  is  doing,  or  threatens,  or  is  about  to 

68.  Davis  v.  Reed,  14  Md.  152.  165.     And  see  Mowbray  v.  Lawrence, 

69.  Peek  v.  Crane,  25  Vt.  146.  14  Abb.  Pr.  160. 

70.  Vliet    v.    Sherwood,     37     Wis.  72.  Rose  v.  Rose,  11  Paige,  166. 
165  73.  Seldon  v.    Vermilya,   4   Sandf. 

71.  Vliet   v.    Sherwood,     37     Wis.      Ch.  573. 

74.  4  Coke's  Inst.  92. 

246 


Granting  of  Injunctions.  §  141 

do,  an  act  in  violation  of  plaintiff's  rights,  respecting  the  subject 
of  the  action ;"  the  majority  of  the  court  were  of  the  opinion  that 
the  words,  "  during  the  pendency  of  the  action,"  have  the  same 
meaning  in  both  provisions,  relating  to  the  time  when  the  threat- 
ened injury  is  likely  to  take  place,  and  not  to  the  time  when  the 
order  may  be  granted ;  and  that  though  the  complaint  does  not  ask 
for  an  injunction,  a  temporary  injunction  order  may  be  granted 
under  said  section  604  of  the  Code,  before  commencement  of  the 
action,  to  become  operative  upon  service  of  the  summons  and  order, 
which  may  be  made  at  the  same  time.  The  minority  of  the  court, 
including  the  chief  justice,  were  of  the  opinion  that,  under  said 
section  604  of  the  Code,  an  injunction  order  was  authorized  to  be 
granted  only  for  acts  done  or  threatened  during  the  pendency  of 
the  action,  and  that  therefore  the  court  had  no  jurisdiction,  under 
that  section,  to  grant  an  order  before  the  commencement  of  the 
action.75  Under  the  Kansas  statute  also  it  is  held  that  the  injunc- 
tion becomes  operative  only  when  the  summons  is  issued.76  In 
Colorado  the  injunction  order  may  be  granted  at  or  before  the 
time  of  filing  the  complaint  and  issuing  the  summons,  or  at  any 
time  afterwards  before  judgment,  upon  affidavits.  The  complaint 
in  the  one  case,  and  the  affidavits  in  the  other,  shall  show  that 


75.  People  ex  rel.  Cauffman  v.  Van  tion,    defeat   the   very   object   of   the 

Buren,  136  N.  Y.  252,  32  N.  E.  775.  suit.    The  section  which  declares  that 

|In    this    case    the    majority    iqf    the  the  court  is  deemed  to  have  acquired 

court    followed    the    rule    adopted    in  jurisdiction  in  a  civil  action  from  the 

Leffingwell  v.  Chave,  5  Bosw.  703,  10  time  of  the  allowance  of  a  provisional 

Abb.    Pr.    472,    where    Woodruff,    J.,  remedy   (§   139),  is  in  harmony  with 

said:      "It  imports  that  the   injunc-  this  construction  and  sustains  it."  As 

tion  may  be  obtained,  so  that  it  shall  to  the  time  of  granting  an  injunction, 

operate    at    the    time    when,    and    so  the   South   Carolina   rule   is   substan- 

soon  as,  the  action  is  commenced,  and  tially  the  same  as  that  of  New  York, 

not  alone  after  it  is  commenced.  This  Meinhard    v.    Youngblood,    37    S.    C. 

accords  with  good  sense.     It  meets  a  223,    15   S.   E.  947.      See,  also,   as   to 

very  large  class  of  cases  in  which  it  the  time  and  place  of  the  exercise  of 

is  of  vital  importance   to   a   plaintiff  this    jurisdiction,    the    late    case    of 

to  enjoin  the  defendant  at  the  very  Hamilton  v.  Icard,  112  N.  C.  589,  17 

instant  he  is  apprised  that  an  action  S.  E.  519. 

is  commenced,  and  in  which  the  de-  76.  State  v.  Rush  County  Com'rs. 

fendant  would,   but  for  such  injunc-  35  Kan.   150. 


247 


142 


Granting  of  Injunctions. 


satisfactory  grounds  exist  therefor.77  The  application  mu9t  be 
made  before  judgment,  and  the  court  has  no  power  to  grant  or 
revive  a  temporary  injunction  after  final  judgment  in  the  action.78 

§  142.  Same  subject;  Alabama  rule. — Though  it  is  the  usual 
and  better  practice  to  present  the  bill  or  complaint  to  the  judge  at 
the  time  of  applying  for  the  injunction,  yet  the  fact  that  the  I  ill 
was  not  so  presented  to  the  judge  and  was  not  filed,  and  that  the 
summons  was  not  issued  until  after  the  injunction  was  ordered,  i8 
a  mere  irregularity  which  does  not  in  itself  invalidate  the  injunc- 
tion, and  which  the  defendant  will  be  held  to  have  waived  if  he 
moves  to  set  the  injunction  aside  as  irregular  before  answering 
the  bill.79     Under  the  North  Carolina  Code,  providing  that  an  in- 


77.  Col.  Code  of  Pro.,  §  120;  and 
it  is  further  provided,  by  §  132,  that 
it  shall  not  be  necessary,  to  the  grant- 
ing of  an  injunction,  that  the  com- 
plaint be  first  filed  in  the  court,  but 
the  order  of  the  judge  or  court  may 
direct  the  injunction  to  issue  upon 
the  filing  of  the  complaint. 

78.  Spears  v.  Mathews,  66  N.  Y. 
127;  Fellows  v.  Heermans,  13  Abb. 
N.  S.  1. 

79.  Ex  parte  Sayre,  95  Ala.  288, 
11  So.  378,  per  Coleman.  J.:  "The 
point  that  a  restraining  order,  be- 
fore the  suit  is  instituted,  is  without 
authority  and  void,  was  made  in 
Heyman  v.  Landers,  12  Cal.  107.  This 
point  was  held  to  be  untenable,  not- 
withstanding a  statute  expressly 
provided  that  an  injunction  may  be 
granted  at  the  time  of  issuing  the 
summons.  Field,  J.,  says:  'The  order 
could  only  take  effect  upon  the  filing 
of  the  complaint  and  the  bond  or 
undertaking  required,  and  it  was  un- 
necessary to  delay  the  application  to 
the  judge  until  after  the  complaint 
had  been  filed.  When  a  restraining 
order    or     an     injunction     is    sought 


upon  the  complaint,  it  is  the  usual 
practice  to  present  the  complaint,  in 
advance  of  the  filing,  to  the  judge, 
and  obtain  the  order  on  the  allow- 
ance of  the  writ;  anu  with  this  prac- 
tice the  statute  does  not  conflict.  The 
order  or  writ  can  then  be  issued  with 
the  summons.'  We  have  no  statute 
regulating,  expressly  or  impliedly, 
the  time  when  an  injunction  may  be 
granted.  Mr.  High  observes:  '  The 
fact  that  the  bill  was  not  filed  until 
after  the  injunction  was  ordered  is 
not  sufficient  ground  for  a  reversal  of 
the  order,  such  omission  being  at  the 
most  but  a  mere  irregularity,  which 
does  not  affect  the  merits  of  the 
cause.'  High,  Inj.,  §  1583.  And  in 
Davis  v.  Reed,  14  Md.  152,  it  was 
held  the  fact  that  the  bill  was  not 
filed  until  after  the  injunction  was 
ordered  is  at  most  but  a  mere  irreg- 
ularity, whicn  cannot  operate  a  re- 
versal of  the  order  granting  it.  It  is 
said :  '  It  is  not  uncommon,  in  some 
of  the  counties,  to  proceed  in  this 
way.  .  .  .  Where  a  practice  has 
become  inveterate  it  is  better  to  ad- 
here to   it,  until  changed  by  a  pro- 


248 


Granting  of  Injunctions. 


143 


junction  may  be  granted  at  the  time  of  commencing  the  action  or 
at  any  time  afterwards  before  judgment,  an  injunction  may  issue 
in  an  action  before  sendee  of  the  summons.80 


§  143.  Granting  injunction  on  bill  filed;  chancery  practice. — 
Under  the  former  Maryland  chancery  practice  the  filing  of  a  bill 
was  the  only  proper  foundation  for  an  injunction;  though  while 
Maryland  was  a  province  an  injunction  could  be  obtained  on  an 
affidavit  stating  the  facts  of  the  case,  before  the  filing  of  the  bill.81 


spective  rule,  than  to  incur  the  risk 
of  doing  injustice  to  a  party  who 
may  have  followed  it,  and  especially 
when  the  opposite  side  has  not  been 
injured  by  the  alleged   irregularity." 

80.  Fleming  v.  Patterson.  99  N. 
C.  404,  6  S.  E.  396. 

81.  Salmon  v.  Clagett,  3  Bland, 
Ch.  125,  161,  per  Bland,  Ch.:  "One 
of  the  articles  of  impeachment 
against  Cardinal  Wolsey  was,  that  he, 
as  chancellor,  had  granted  injunc- 
tions without  any  bill  being  put  in. 
4  Inst.  92.  And  Lord  Bacon  in  reply 
to  the  king's  instructions,  pledged 
himself  not  to  grant  injunctions  on 
the  mere  statement  of  the  bill,  but 
only  on  matter  confessed  by  the  de- 
fendant's answer,  unless  called  for  by 
pressing  circumstances.  After  which 
it  was  declared,  by  a  statute  which  i3 
in  force  here  mat  no  subpoena  or  any 
other  process,  except  injunctions  to 
stay  waste  or  proceedings  at  law, 
should  be  granted  before  a  bill  was 
filed.  4  Ann,  ch.  16,  §  22.  But,  dur- 
ing the  provisional  government,  it 
appears  to  have  been  the  practice  to 
grant  an  injunction  to  stay  proceed- 
ing at  law,  before  the  filing  of  the 
bill,  upon  a  petition  briefly  stating 
the  circumstances,  and  that  too  as  it 
would  seem,  without  any  affidavit  or 
other  evidence  of  the  truth  of  the 
matters  so  stated.     In  which  case  the 


petition  prayed  an  injunction  until 
the  matter  could  be  heard  on  a  bill 
to  be  filed,  setting  forth  the  facts 
more  at  large;  and  the  bill,  after- 
wards filed,  prayed  a  contiuance  of 
the  injunction  as  granted.  This 
course  of  proceeding  was,  no  doubt, 
adopted  on  the  ground  of  analogy  to 
the  English  mode  of  granting  an  in- 
junction in  some  cases  for  a  similar 
purpose,  on  an  affidavit  stating  the 
facts  of  the  case  before  the  filing  of 
the  bill.  Eden,  Inj.  36,  231.  But  1 
have  met  with  no  instance  of  this 
kind  since  the  establishment  of  the 
republic.  According  to  the  present 
course  of  proceeding  in  this  court, 
there  is  but  one  mode  of  obtaining  an 
original  injunction;  and  that  is  by  a 
bill.  To  lay  a  proper  foundation  for 
an  injunction2  the  bill  should  set 
forth  a  case  of  plain  right,  and  a 
probable  danger  that  the  right  would 
be  defeated  without  the  interposition 
of  the  court;  Anonymous,  1  Vern. 
120;  The  State  of  Georgia  v.  Braisl- 
ford,  2  Dall.  405;  or  it  should  ap- 
pear that  the  question  was  important 
and  doubtful;  Mestaer  v.  Gillespie, 
11  Ves.  636;  and  the  truth  of  the 
facts  should  be  verified  by  an  affi- 
davit which  is  usually  made  by  the 
plaintiff  himself,  or  by  one  of  the 
plaintiffs  if  there  be  more  than  one. 
That,  however,  is  not  essential;  for  I 


249 


§  144  Granting  of  Injunctions. 

And  on  the  filing  of  a  bill  for  an  injunction,  the  defendant  might 
instantly  put  in  his  answer  so  as  thereby  to  prevent  the  granting 
of  an  injunction  as  prayed  by  the  bill.82  So  where  the  right  to  a 
preliminary  injunction  was  based  on  the  fact  that  the  complainant 
was  the  owner  of  the  property  which  it  was  sought  to  reach  in  an 
action,  and  of  which  the  defendant  had  the  legal  title,  the  court 
refused  to  grant  the  injunction,  where  such  ownership  was  denied 
by  the  facts  alleged  in  the  answer  and  by  affidavits.83  But  where 
threats  to  remove  certain  property  were  denied  by  the  sworn  an- 
Bwer  it  was  held  that  affidavits  by  other  witnesses  as  to  the  making 
of  the  threats  alleged  which  affidavits  were  corroborated  by  other 
evidence  were  sufficient  to  overcome  such  denial  and  to  justify 
the  granting  of  a  preliminary  injunction.84  And  where  facts  con- 
stituting title  are  alleged  by  the  complainant  an  answer  is  not 
sufficient  which  merely  denies  title  as  alleged  but  states  no  facts 
showing  title  in  defendant.80 

§  144.  Granting  injunction  in  spite  of  answer. — An  answer 
to  an  injunction  bill  will  be  of  little  avail  if  instead  of  denying  the 
facts  on  which  the  complainant  relies,  it  merely  controverts  con- 
clusions of  law  from  those  facts;  or  is  bald  and  general  in  its 
denials  where  it  ought  to  inform  the  court  by  being  specific  and 
explanatory;  and  is  without  oath  instead  of  being  verified;  and 
where  the  defendant's  affidavits  produced  in  support  of  the  answer 
unattended  with  the  documentary  evidence  relating  to  the  matters 
in  issue,  and  are  not  in  response  to  any  of  the  allegations  or  charges 
of  the  bill.  A  denial  is  futile  in  the  face  of  the  facts,  and  an 
answer  which  seeks  to  conceal  rather  than  disclose  the  facts,  must 

have  granted  an  injunction  when  the  to  trust  the  bill  for  the  truth  of  its 

bill  was  sworn  to  by  an  agent  of  the  statements.      Schermerhorn    v.    L'Es- 

plaintiff  who  was  privy  to  the  trans-  penasse,  2  Dall.  364." 

action,  the  plaintiff  being  a  foreigner  82.  Hall    v.    McPherson,    3    Bland, 

and  resident  abroad.     Dunlop  v.  Har-  Ch.    (Md.)    529. 

rison,   28   September.     1826.     Indeed,  83.  Guild  v.  Meyer,  56  N.  J.  Eq. 

an  affidavit  of  any  one  does  not  ap-  193,   38  Atl.   959. 

pear  to  be  indispensably  necessary,  if  84.  Ashby   v.   Asnby    (N.   J.   Eq.). 

documentary    or    any    other    kind    of  40  Atl.   118. 

evidence    be    produced,    sufficient    to  85.  Mobile  &  M.  R.  Co.  v.  Alabama 

cause  belief,  and  to  induce  the  court  M.  R.  Co.,  123  Ala.  145,  26  So.  324. 

250 


Granting  of  Injunctions. 


§144 


fail  of  its  purpose  in  a  court  of  equity,  and  will  offer  but  little 
resistance  to  the  injunction  application.86     But  where  the  petition 


86.  Hazlehurst  v.  Sea  Isle,  etc.,  R. 
Co.    (N.  J.).  25  Atl.  201,  the  court: 
"The  defendants  McGuigan,  O'Neill, 
Becker,   and  Gorman  have  joined  in 
an  answer  in  which  they  admit  the 
prosecution    of    the    several    liens    of 
the  complainants  in  the  manner  above 
set  out,  but  say,  '  We  are  advised  in 
law,   and    therefore    deny,    that   the 
mortgages  are  subsequent  to  either  of 
the  lien  claims  filed  by  the  complain- 
ants;'   but    do    not   deny    the    facts 
upon  which  the  complainants  rely  for 
priority,  nor  set  out  any  facts  which 
tend  to  show  why  they  are  not  prior 
to    the    mortgages,    except    that    the 
mortgage  of  McGuigan  was  given  for 
consideration  money.    They  aver  that 
the    hotel    company    never    had,    nor 
now  has,   any  estate  which  could  be 
subjected  to  the  lien  of  the  complain- 
ants, without  setting  out  what  estate 
it   had.      They   admit   that   the    con- 
veyance from  McGuigan  to  Williams 
was  made  after  the  building  was  sub- 
stantially all  built.     They  admit  the 
suit  by   Petty  &  Co.,  and  that  they 
did  not  make  McGuigan,  O'Neill,  and 
Becker,     mortgagees,      defendants    in 
their  suit;  and  admit  that  judgment 
was  entered  upon  their  suit  as  set  out 
in    the    bill,    and   that   Gorham    pur- 
chased the  claim  from  Petty  for  an 
adequate      consideration,      and     that 
Petty  &  Co.  have  no  further  interest 
in   it.     They  deny  that  Gorman  pur- 
chased the  claim  for  or  on  behalf  of 
the  Sea  Isle  City  Hotel  Company,  or 
with  their  funds  or  securities,  or  that 
the  hotel  company  in  any  way,  man- 
ner or  form,  directly  or  indirectly,  is 
interested    in   the   claim   or   its    pro- 
ceedings thereon.     The    answer  does 


not  state   for  whom,   or  with  whose 
money,     Gorman    did    purchase    the 
Petty  lien  claim  or  any  of  the  other 
claims,  but  denies  that  he  acted  in 
that    purchase     for     the    mortgagees 
named;   admits  the  advertisement  of 
the  lots  for  sale  subject  to  the  mort- 
gages.     The    defendants    deny    that 
Petty's  claim   is   being  used   by   the 
defendant  Gorman  or  anybody  else  for 
the    purpose    of    defeating    the    com- 
plainants, or  any  of  them,  or  prevent- 
ing their     receiving     any     benefit  to 
which  they  are  or  may  be  entitled  as 
against  the  said  building  in  any  way. 
But  they  do  not  state  why  the  prop- 
erty was  ordered  to  be  sold  under  the 
Petty    judgment   rather    than    under 
the  Gould  judgment.    This  answer  is 
without  oath.     An  affidavit  was  pre- 
sented by  Mr.  Gorman,  in  which   he 
swears  that   upon   the  '  trial   of  the 
cause  wherein  the  said  complainants 
were    plaintiffs,    and    the    said    hotel 
company   defendants,   the  trial   judge 
found  the  said  hotel  company  to  be 
indebted  to  the  plaintiffs  in  a  certain 
sum,  and  that  the  liens  did  bind  only 
the  buildings,     and    it    being   repre- 
sented to  the  said  trial  judge  that  the 
complainants  would  appeal,  and  dur- 
ing the  pendency  of  said  appeal,  and 
before  determination,  injustice  would 
be  done  by  allowing  a  sale  to  be  had, 
said  judge    made    an    order  staying 
proceedings   for  the   sale  of   the   said 
hotel  until  the  plaintiffs  might  have 
opportunity    to     have     their    appeal 
heard.'      In    this    affidavit    Mr.    Gor- 
man further  says  'that  it  is  untrue 
and  false  that  he  is  making  use  of 
said  Petty  claim  for  the  purpose  of 
depriving    the   complainants,   or    any 


251 


§  L45 


GRANTING    Ol     I.\  .11 'NOTIONS. 


for  a  perpetual  injunction  is  demurrable  it  is  decided  that  an  in- 
junction will  not  be  granted  without  evidence  even  though  the 
petition  is  verified  provided  any  answer  is  made  thereto  which  does 
not  operate  to  cure  the  defects  of  such  petition.87 

§  145.  Verification  of  bill. — Upon  an  ex  parte  application  for 
an  injunction  if  there  is  any  material  allegation  upon  which  the 
right  to  the  injunction  rests  which  is  not  within  the  personal 
knowledge  of  the  complainant  or  of  the  agent  or  attorney  who 
verifies  the  bill,  an  additional  affidavit,  of  the  person  from  whom 
the  information  is  derived,  should  be  required  verifying  the  truth 
of  the  information  thus  given.88  Thus,  a  bill  for  injunction  was 
held  not  to  be  verified  at  all  where  the  only  verification  was  an 
affidavit  of  counsel  to  the  effect  that  what  he  knew  of  his  own 
knowledge  was  true,  and  what  he  had  heard  he  believed  to  be  true, 
but  it  was  not  stated  that  he  knew  anything  of  his  own  knowledge ; 
and,  as  the  answer  did  not  admit  or  verify  the  material  facts 


of  them,  or  preventing  their  receiv- 
ing any  benefit  to  which  they  are  or 
may  be  entitled.'  This  is  all  the  ex- 
planation he  makes,  and  all  the  rea- 
son he  gives  for  advertising  the 
property  under  the  Petty  claim  in- 
stead of  under  the  Gould  claim.  With 
regard  to  the  allegation  of  the  answer 
and  affidavit  that  the  complainants 
agreed  to  the  discharge  of  the  order 
made  in  the  Circuit  Court  staying 
the  sale,  upon  condition  that  the  de- 
fendants should  give  security  for  the 
payment  of  the  complainants'  claim 
in  full,  in  case  the  court  of  errors 
and  appeals  should  reverse  the  ac- 
tion of  the  circuit  judge,  two  observa- 
tions may  be  made:  First,  it  is  new 
matter,  not  in  response  to  any  of  the 
allegations  or  charges  of  the  bill;  the 
answer  and  affidavit  were  produced 
and  filed  and  were  first  seen  by  coun- 
sel at  the  hearing;   under  these  cir- 


cumstances, the  well-settled  rule  for- 
bids me  to  rely  upon  it  without  giv- 
ing the  complainants  opportunity  to 
answer  it;  and,  second,  that  it  is 
supported  only  by  the  affidavit  of  the 
defendant  Gorman,  without  produc 
ing  the  record  of  the  proceedings  in 
the  Circuit  Court,  or  any  copy 
thereof,  or  the  agreement,  or  any  copy 
thereof,  or  of  the  bond  filed  as  secur- 
ity. Such  affidavit  does  not  amount 
to  proof,  and  must  be  laid  out  of 
view. ' 

87.  Jones  v.  Johnson,  57  Kan.  629, 
47  Pac.  523. 

88.  Bank  of  Orleans  v.  Skinner,  9 
Paige,  305;  Campbell  v.  Morrison,  7 
Paige,  157.  If  an  injunction  bill  has 
been  actually  sworn  to,  the  injunc- 
tion will  not  be  dismissed  because 
the  master  omitted  to  sign  the  jurat. 
Capner  v.  Flemington  Mining  Co.,  3 
N.   J.   Eq.   467. 


252 


Granting  of  Injunctions.  §  145 

alleged  in  the  bill  the  injunction  was  properly  refused.8*  The  case 
of  a  creditor's  bill  where  an  injunction  is  sought  for  against  the 
judgment  debtor  only  is  an  exception  to  the  general  rule  that  all 
the  material  facts  must  be  sworn  to  positively  in  order  to  obtain  an 
ex  parte  preliminary  injunction;  as  in  such  case  the  judgment 
and  execution  are  matters  of  record,  and  to  which  the  defendant 
was  a  party,  the  complainant  need  not  swear  positively  to  the 
records  referred  to  in  the  bill.90  The  bill  may  be  verified  by  an 
attorney  or  agent  who  is  familiar  with  the  facts.91  So  in  a  recent 
case  in  Florida  it  has  been  decided  that  a  bill  for  an  injunction 
is  properly  verified  by  the  solicitor  for  complainant  where  his 
affidavit  is  positive  and  direct  to  all  the  allegations  of  the  bill.92 
Where  a  copy  of  the  petition  is  attached  as  an  exhibit,  forming 
part  thereof,  to  an  application  for  an  injunction,  which  is  verified 
by  an  affidavit  that  the  application  and  the  exhibit  are  true,  the 
petition  itself  need  not  be  verified.93  In  Rhode  Island  a  bill  for 
an  injunction  is  not  demurrable  for  want  of  a  verifying  affidavit; 
there  the  practice  is  not  to  grant  an  injunction  ex  parte  on  a  bill 
alone,  but  to  require  proof  by  the  complainant's  affidavit  or  other- 
wise making  a  prima  facie  case  for  an  injunction.94 

89.  Landes  v.  Globe  MTg  Co.,  73  N.    J.    Eq.    42. 

Ga.  176;  Hone  v.  Moody,  59  Ga.  731.  90.  Sizer  v.  Miller,  9  Paige,  605; 

If    the    complainant   is   absent  Hemersley  v.  WyckofF,  8  Paige,  72. 

or  his  affidavit,  for  any  reason,  can-  91.  Mayor  v.   Finney,  54  Ga.  317; 

not  be  procured,  it  may  be  sworn  to  Long  v.  Kasebeer,  28  Kan.  226.     It 

by  his  attorney  or  by  any  person  ac-  was  so  held  as  to  the  verification  of 

quainted  with  the  facts.     Youngblood  a  bill  in  aid  of  a  creditor's  suit  which 

v.  Schamp,  15  N.  J.  Eq.  42.     In  this  was  made  by  the  attorney  who   had 

case   the  attorney  swore  to  the   affi-  conducted    the     proceedings     at    law. 

davit   on   the  ground  that   complain-  Sizer   v.   Miller,    9   Paige,     605.      He 

ant's    residence    was    so   remote    that  must  swear  positively  to  the  material 

the    delay     in     getting     his    affidavit  facts.     Landes  v.  Globe  M'f'g  Co.,  73 

might  defeat  the  whole  object  of  the  Ga.  176. 

bill — the  affidavit  was  held  not  suffi-  92.  Seaboard     Air     Line     Ry.     v. 

cient.  Southern  Inv.  Co.  (Fla.  1907),  44  So. 

Where    the    bill    is   filed   by    a  351. 

corporation,  the  officer  or  other  per-  93.  State     ex     rel.     Spurgeon     v. 

son   who   has  the   principal   personal  Loomis,  46  Kan.  107,  26  Pac.  472. 

knowledge  of  the  facts  should  swear  94.  Harrington  v.   Harrington,    15 

to  them.     Youngblood  v.  Schamp,   15  R.  I.  341,  5  Atl.  502. 

253 


§§  .146,  147  Granting  of  Injunctions. 

§  146.  Verification  of  bill  in  New  Jersey. — Under  the  New 
Jersey  Chancery  Act,  which  provides  that  no  injunction  shall  be 
granted  to  stay  a  suit  at  law  before  verdict  or  judgment,  "  unless 
the  chancellor  be  satisfied  by  affidavit  at  the  foot  or  on  the  back 
of  the  bill  or  by  other  means,"  that  the  allegations  thereof  be 
true;95  a  verification  which  is  insufficient  because  made  on  informa- 
tion and  belief  may  be  cured  by  auxiliary  evidence  of  the  material 
allegations  of  the  bill  presented  to  the  chancellor,  or  by  a  duly 
verified  supplemental  bill  which  does  not  change  the  cause  of 
action.96  And  an  injunction  bill  may  be  amended  even  after 
motion  to  dissolve,  and  if  when  so  amended  and  duly  verified,  it 
shows  sufficient  cause  for  continuing  the  injunction  which  is  not 
overcome  by  the  defendant,  it  will  be  continued,  and  a  motion  for 
dissolution  on  the  ground  of  defects  in  the  original  bill  will  be 
denied  where  those  defects  have  been  remedied  by  an  amended  bill 
which  does  not  change  the  cause  of  action.97  Under  rule  123  of 
New  Jersey  chancery  requiring  defendant  to  rely  solely  on  his 
own  affidavit,  in  case  the  complainant  in  an  injunction  bill  relies 
only  on  his  affidavit,  a  married  woman  cannot  avail  herself  of  her 
husband's  affidavit  to  support  her  answer,  though  he  acted  as  her 
agent  in  the  matter  in  controversy.98 

§  147.  Same  subject;  Maryland  rule. — If  an  injunction  is 
granted  on  the  bill  alone,  the  Maryland  rule  is  that  the  bill  must 
be  verified  by  the  affidavit  of  plaintiff,  or  of  one  of  them  if  there 
are  several,  or  if  the  plaintiff  be  non-resident  by  the  affidavit  of  a 
third  person,  who  must  show  how  he  happens  to  know  the  facts  set 
forth  in  the  bill,  or  the  bill  must  be  verified  by  some  other  testi- 
mony sufficient  to  satisfy  the  chancellor  that  the  bill  is  trustworthy 
in  its  allegations.99     On  the  filing  of  a  bill  for  an  injunction  the 


95.  N.  J.  Rev.  St.,  §  84.  Eq.  293;  Sweatt  v.  Faville,  23  Iowa, 

96.  Conover  v.  Ruckman,  34  N.  J.  321 ;  Crawford  v.  Paine,  19  Iowa,  172. 
Eq.  293;  Christie  v.  Griffing,  9  C.  E.  98.  Bell  v.  Romaine,  30  N.  J.  Eq. 
Gr.  76;   Orr  v.  Littlefield,   1   Woodb.  24;   Gariss  v.  Gariss,  2  Beas.  320. 

4,  M.  13.  99.  Jones  v.  Magill,  1  Bland,  Md. 

97.  Conover  v.  Ruckman,  34  N.  J.  177. 

254 


Gbanting  of  Injunctions.  §  148 

defendant,  in  order  to  prevent  the  issuing  of  the  writ,  may  in- 
stantly put  in  his  answer,  which  the  court  is  bound  to  consider  and 
give  proper  effect  to;1  and  in  such  a  case  no  appeal  lies  from  an 
order  refusing  the  injunction.2 

§  148.  Verification  in  Georgia  and  South  Carolina. — The  re- 
fusal by  a  judge  to  hear  and  determine  a  petition  for  injunction 
before  the  same  has  been  verified  as  required  by  law  is  not  error 
under  a  statute  providing  "  that  no  petition  needs  to  be  verified, 
unless  it  seeks  an  extraordinary  equitable  relief  or  remedy,  in 
which  case  it  must  be."  3  The  evident  purpose  of  such  a  statute 
is  to  provide  for  a  verification  of  the  petition  before  action  thereon 
by  the  judge,  and  proof  of  its  allegations  at  or  during  the  hearing 
thereon  is  not  sufficient,  but  it  may  be  that  some  other  mode  of 
verification  than  by  affidavit  would  suffice.4  Though  the  better 
practice  is  to  require  proper  verification  before  any  action  is  taken 
on  the  petition,  yet  where  there  is  a  verification  which  is  imperfect, 
as  where  it  is  only  on  information  and  belief,  the  deficiency  may 
be  supplied  by  affidavits  at  the  hearing  in  case  the  presiding  judge 
shall  think  proper,  in  the  exercise  of  his  discretion,  to  proceed  on 
the  defective  verification.5  It  is  clearly  not  error  to  deny  an 
injunction  where  the  only  evidence  in  support  of  the  petition  is  an 
affidavit  by  petitioners  that  "  the  facts  contained  in  the  written 
bill  of  complaint  are  true  so  far  as  they  depend  on  our  knowledge 

1.  Krone  v.  Krone,  27  Md.  77;  made.  It  may  be  that  other  forms 
Bell  v.  Purvis,  15  Md.  22;  Hall  v.  of  proof  could  be  attached  to  the  pe- 
McPherson.  3  Bland,  Ch.   (Md.)    532.  tition  or  accompany  and  be  exhibited 

2.  Rogers  v.  Thompson,  cited  27  with  it,  which  would  authorize  the 
Md.  81;  Steigerwald  v.  Winans,  17  judge,  if  he  saw  proper,  to  proceed, 
Md.  65,  66.  and  he  may  in  his  discretion  at  the 

3.  Boykin  v.  Epstein,  87  Ga.  25,  hearing  allow  the  petition  to  be  veri- 
13  S.  E.   15.  ^ed;  but  he  cannot,  in  the  face  of  the 

4.  Boykin  v.  Epstein,  87  Ga.  25,  statute,  be  compelled  to  allow  the 
13  S.  E.  15,  Lumpkin,  J.:  "We  do  hearing  to  take  place  without  any 
not  mean  to  hold  that  the  verification  verification." 

required  by  law  can  be  made  only  by  5.  Martin  v.  Burgwyn,  88  Ga.  78, 

an  affidavit  attached  to  the  petition,  13  S.  E.  958;  Alspaugh  v.  Adams,  80 

or  that  the  judge  may  not,  at  the  Ga.    345,   5   S.   E.   496;    Shannon  v. 

hearing,  allow  the  verification  to  be  Fecheimer,  76  Ga.  86. 

255 


§149 


Granting  of  Injunctions. 


and  belief,  and,  so  far  as  they  depend  on  the  knowledge  and  in- 
formation of  others,  we  believe  them  to  be  true."  In  South 
Carolina  it  has  been  decided  that  an  injunction  may  be  granted  on 
an  unverified  complaint  where  it  is  accompanied  by  affidavits  which 
sustain  its  material  allegations.7 

§  149.  Verification ;  Federal  practice. — In  the  Federal  courts 
when  a  bill  for  an  injunction  is  to  be  used  as  evidence  on  a  motion 
for  a  preliminary  injunction  it  must  be  verified  ;  but  if  not  to  be  so 
used  no  imperative  rule  requires  it  to  be  verified.8  If  the  de- 
fendant appears  on  the  hearing  of  the  injunction  application,  the 
complainant  must  then  satisfy  the  court  of  the  truth  of  the  allega- 
tions of  the  bill  by  a  direct  verification  to  its  truth  or  by  other 
testimony.  But  a  direct  admission  by  defendant  of  the  facts 
alleged  in  the  bill,  or  his  virtual  admission  of  them  by  demurring 
merely  on  account  of  want  of  law  in  the  bill,  or  defendant's  waiver, 
may  render  complainant's  oath  to  the  bill  unnecessary.9     The  old 


6.  Bailey  v.  Bailey.  90  Ga.  435.  16 
S.  E.  90.  See,  also,  Bigbee  v.  Satter- 
field,  105  Ga.  841,  32  S.  E.  139. 

7.  Meinhard  v.  Youngblood,  37  S. 
C.  223,  15  S.  E.  947. 

8.  Black  v.  Allen  Company,  42  Fed. 
618;  Hughes  v.  Northern  Pac.  R.  Co., 
18   Fed.    106,    110. 

9.  Woodworth  v.  Edwards,  3  Wood. 
&  M.  120,  where  Woodbury,  J.,  said: 
"  The  first  ground  assigned  for  this 
demurrer  is  the  want  of  an  oath  to 
the  bill,  or  any  evidence  in  its  sup- 
port. But  this  is  a  ground  more 
properly  to  be  taken  at  a  hearing  on 
the  merits  against  proceeding  further, 
till  such  oath  or  such  evidence  is  put 
in.  It  is  a  matter  in  pais  and  af- 
fecting the  trial  of  the  facts  rather 
than  a  defect  in  the  bill  itself.  Of 
course  at  the  trir  1.  or  hearing, 
whether  a  case  is  made  out  or  not,  if 
the  facts  which  the  bill  alleges  are 
denied  by  tne  respondents,  the  plain- 


tiffs must  furnish  evidence  of  them 
before  succeeding.  Generally  they 
must  do  it  by  their  oath  to  the  truth 
of  the  bill,  and  always  by  other  testi- 
mony prima  facie  satisfactory,  be- 
fore the  respondents  are  obliged  to 
rebut  it  by  evidence  on  their  part. 
But  sometimes  this  need  not  be  done 
by  the  complainant  where  the  re- 
spondents do  not  appear  and  are  de- 
faulted; or  after  an  appearance  and 
order,  do  not  comply  with  it.  and  the 
allegations  in  the  bill  are  taken  pro 
confesso;  or  if  after  such  an  appear- 
ance the  respondent  virtually  admits 
the  truth  of  the  facts  by  demurring 
merely  on  account  of  the  want  of  law 
in  the  bill.  The  practice  here  is  us- 
ually for  the  complainant  to  make 
oath  to  his  bill  when  it  is  signed,  but 
this  is  not  imperative  nor  uniform. 
It  is  not  then  done,  if  he  is  absent  or 
indisposed,  though  it  should  be  done 
probably  before  the  hearing  unless  it 


250 


Granting  of  Injunctions. 


150 


New  York  chancery  practice  required  bills  to  be  verified ;  the  de- 
fendant was  not  bound  to  look  beyond  the  copy  of  the  bill  served 
on  his  solicitor,  and  he  could  demur  if  that  did  not  contain  the 
requisite  affidavit.10 

§  150.  Allegations  on  information  and  belief. — Where  the  facts 
upon  which  the  equity  of  the  complainant  rests  are  alleged  merely 
upon  "  information  and  belief,"  a  court  will  not  ordinarily  grant 
an  injunction.11  But  where  a  verifying  affidavit  cannot  be  pro- 
cured, it  has  been  decided  that  the  complainant  upon  showing  a 
sufficient  excuse  in  his  bill  will  be  entitled  to  an  order  to  show 
cause  why  an  injunction  should  not  be  granted,  and  that  upon  a 
bill  thus  framed  and  verified  by  the  complainant's  oath  as  to  his 
information  and  belief,  a  temporary  injunction  may  be  allowed 
until  the  time  for  showing  cause  arrives.  Thus  an  affidavit  by  the 
attorney-general  that  he  believes  a  suspended  bank  to  be  insolvent 
is  sufficient,  where  there  is  no  denial  by  the  bank,  to  justify  the 
granting  of  an  injunction  and  appointment  of  a  receiver.12     And 


be  a  bill  by  a  corporation,  or  unless 
an  answer  under  oath  is  not  asked, 
or  unless  an  oath  to  the  bill  is 
waived,  or  its  absence  is  not  objected 
to  by  the  respondents  when  first 
heard.  And  if  the  principal  i3  not  in 
a  situation  to  swear  to  it,  the  oath 
may  be  made  by  an  agent.  1  Bar- 
bour, Ch.  Pr.  41.  When  this  case 
was  before  my  associate  at  a  former 
hearing,  and  when  the  order  was 
made  as  to  filing  other  evidence,  no 
exception  was  taken  to  the  absence 
of  an  oath  to  the  bill,  and  we  both 
concur  in  the  opinion  that  after- 
wards, if  at  all,  a  demurrer  is  not 
good  for  that  cause  in  this  court." 

10.  Lansing  v.  Pine,  4  Paige,  639. 

11.  Florida. — Ballard  v.  Eckman. 
20  Fla.   661. 

Georgia. — Jones  v.  Macon  &  B.  R. 
Co.,  39  Ga.  138;  Taylor  v.  Harp,  37 
Ga.  358. 


Louisiana. — New  Orleans  Canal  & 
B.   Co.,  3  La.  Ann.  225. 

Minnesota. — Armstrong  v.  Sanford, 
7  Minn.  49. 

New  York. — French  v.  Maguire,  55 
How.  Prac.  471;  Hecker  v.  New  York, 
28  How.  Prac.  211;  Jewett  v.  Allen, 
3  How.  Prac.  129;  Woodruff  v. 
Fisher,  17  Barb.  224;  Pidgeon  v. 
Oatman,  26  N.  Y.  Super.  Ct.  706. 

West  Virginia. — Shonk  v.  Knight 
12  W.  Va.  667. 

12.  Attorney-General  v.  Columbia 
Bank,  1  Paige,  511;  followed  in 
Campbell  v.  Morrison,  7  Paige,  157, 
160.  In  Youngblood  v.  Schamp.  15 
N.  J.  Eq.  42,  the  chancellor  says: 
"  There  is  a  class  of  cases,  as,  for  ex- 
ample, bills  charging  fraud,  where  in 
the  very  nature  of  things  positive 
proof  cannot  be  expected.  In  such 
cases  the  additional  verification  may 
be  dispensed  with  and  the  injunction 


257 


17 


§151 


Granting  of  Injunctions. 


the  case  of  a  creditor's  bill,  where  an  injunction  is  sought  for 
against  the  judgment  debtor  alone,  is  an  exception  to  the  general 
rule,  that  all  the  material  facts  must  be  sworn  to  positively,  in 
order  to  obtain  a  preliminary  injunction  ex  -parte;13  in  such  a  case 
the  complainant  may  swear  to  his  belief  in  the  recovery  of  the 
judgment  and  the  return  of  the  execution  upon  the  information 
of  his  attorney,  as  those  facts  were  matters  of  record  to  which  the 
judgment  debtor  was  a  party.14 

§  151.  Service  of  injunction. — Parties  designed  to  be  found 
by  an  injunction  have  a  right  to  accept  service  in  the  ordinary  way 
if  they  are  accessible ;  and  if  they  are  not  so  served,  and  no  excuse 
for  it  appear,  as  to  them  the  injunction  should  be  deemed  waived 
or  as  never  in  force.15  But  objections  to  service  which  are  techni- 
cal will  not  generally  be  allowed  to  prevail  after  verdict  where  the 


issue  on  the  affidavit  of  the  complain- 
ant founded  on  his  belief  alone." 

13.  Sizer  v.  Miller,  9  Paige,  605. 

14.  Hamersley      v.      Wyckoff,      8 
Paige,   72. 

15.  In  re  Cary,  10  Fed.  622,  627. 
Per  Brown,  J. 

Under  the  New  York  Code 
when  an  injunction  order  is  granted 
by  the  court,  it  must  be  served  by 
delivering  a  certified  copy  to  the  de- 
fendant; when  granted  by  a  julge 
by  showing  the  original  order  and  de- 
livering a  copy.  Service  on  a  corpo- 
ration is  made  as  a  summons  is  per- 
sonally served  on  it.  Copies  of  the 
papers  on  which  the  order  was 
granted  must  be  delivered  with  the 
copy  of  the  order.  Code  Civ.  Pro.,  § 
610.  Penfield  v.  White,  8  How.  Prac. 
87 ;  Daly  v.  Amberg,  13  N.  Y.  Supp. 
379,  380.  In  this  connection  it  has 
been  decided  in  this  State  that  the 
order  and  the  summons  may  be 
served  at  the  same  time  but  it  is  ir- 
regular to  serve  the  order  before  the 
summons,  though  it  may  be  granted 


before  service  of  summons,  so  as  to 
operate  as  soon  as  the  action  is  com- 
menced. 10  Abb.  Pr.  472,  19  How. 
Pr.  54;  Leffingwell  v.  Chase,  5  Bosw. 
703.  Probably  such  irregularity 
would  not  be  fatal  to  the  validity  of 
the  order.  Phoenix  Foundry  v.  North 
River,  etc.,  Co.,  6  Civ.  Pro.  106.  Nor 
would  neglect  to  serve  promptly  the 
moving  affidavits.  Davis  v.  Brooks,  4 
Law  Bui.  (N.  Y.)  49,  Davis  v. 
Mayor.  1  Duer,  451;  People  v.  Stur- 
tevant,  9  N.  Y.  263. 

And  where  an  injunction  is 
granted  on  a  verified  complaint,  ser- 
vice of  a  copy  of  the  complaint  with 
the  injunction  is  service  of  a  copy  of 
the  affidavit  on  which  it  was  granted. 
Leffingwell  v.  Chave,  10  Abb.  Prac. 
(N.  Y.)  472,  19  How.  Prac.  54.  And 
where  it  appears  that  the  omission 
of  the  plaintiff  to  file  the  papers 
upon  which  an  injunction  is  granted, 
as  required  by  the  rule  of  court,  is 
an  inadvertence,  it  is  held  that  the 
court  may  in  its  discretion  relieve 
the  plaintiff  upon  or  without  terms. 


258 


Granting  op  Injunctions. 


151a 


substantial  rights  of  the  parties  have  not  been  invaded.16  So, 
though  there  may  not  be  a  strict  service  of  an  injunction  order  as 
required  by  code  or  statute,  yet  if  the  defendant  has  actual  notice 
of  the  granting  of  such  an  order  he  is  bound  thereby.17 

§  151a.  Party  enjoined  out  of  State;  mode  of  service. — In  an 
early  case  in  New  Jersey  it  is  decided  that  personal  service  of  an 
injunction  may  be  dispensed  with  if  the  party  is  out  of  the  State 


Leffingwell  v.  Chave,  19  How.  Prac. 
(N.  Y.)  54.  In  this  case  the  costs  of 
motion  were  imposed. 

It  is  also  decided  that  the  original 
injunction  order  must  be  shown  to 
the  party,  service  of  a  copy  only  with 
notice  that  it  is  a  copy  of  the  orig- 
inal not  being  sufficient.  Watson  v. 
Fuller,  9  How.  Prac.  (N.  Y.)  425; 
compare  Mayor  of  New  York  v.  New 
York  &  S.  I.  F.  Co.,  40  N.  Y.  Super. 
Ct.  300.  But  where  an  injunction  is 
granted  by  the  court,  and  not  by  a 
judge  out  of  court,  it  is  properly 
served  by  delivering  a  certified  copy 
and  no  exhibition  of  the  original  or- 
der is  necessary.  Mayor  of  New 
York  v.  Conover,  5  Abb.  Prac.  (N. 
Y. )  244.  Under  the  old  chancery 
practice  it  was  necessary  to  serve  all 
of  several  joint  defendants  with  an 
injunction  to  restrain  a  suit  at  law 
to  which  they  were  all  parties;  it 
was  enough  to  serve  one  of  them  and 
their  attorney  in  the  suit  at  law.  See- 
bor  v.  Hess,  5  Paige,  85. 

Where  an  injunction  order  is  prop- 
erly granted  under  section  603  of  the 
New  York  Code,  it  may  be  served  on 
defendant's  agents  and  servants  so 
as  to  bind  them  before  the  summons 
in  the  action  is  served  on  defendant. 
Daly  v.  Amberg,  126  N.  Y.  490,  27 
N.  E.  1038,  per  O'Brien,  J.:  "It 
may  be  admitted  that  an  injunction 
served   prior   to   the  service  of   sum- 


mons is  irregular,  but  it  by  no  means 
follows  that  it  is  void.  In  some 
cases  the  court  acquires  jurisdiction 
of  an  action  before  the  summons  is 
served.  By  section  416  of  the  Code 
of  Procedure  jurisdiction  of  the  ac- 
tion is  obtained  for  the  purpose  of 
controlling  all  subsequent  proceed- 
ings from  the  time  of  granting  a  pro- 
visional remedy.  It  follows  that  in 
,  this  case  the  court  had  the  power  to 
grant  the  injunction,  and  had  juris- 
diction of  the  action  in  which  it  was 
granted,  from  that  time  for  the  pur- 
pose of  enforcing  obedience  to  its  or- 
der. In  this  condition  of  things  to 
say  that  these  appellants  could  dis- 
regard the  injunction  when  actually 
served  on  them  because  the  plaintiff 
had  not  yet  succeeded  in  making  per- 
sonal service  of  the  summons  upon 
the  defendant,  would  be  to  defeat  the 
remedy  intended  to  be  secured  by  the 
order.  See,  also,  Koehler  v.  Farmers', 
etc..  Bank,  14  Civ.  Pro.  71;  aff'd 
117  N.  Y.  661,  22  N.  E.  1134,  to  the 
effect  that  defendant's  knowledge  of 
an  injunction  makes  it  binding  on 
him  though  he  has  not  been  personally 
served." 

16.  Ades  v.  Leir,  137  Ind.  506.  37 
N.  E.  388.  See,  also,  Knudson  v. 
Firedery.  27  Misc.  R.    (N.  Y.)   98. 

17.  Rochester,  Hornellsville  &  L. 
R.  Co.  v.  New  York,  L.  E.  &  W.  R. 
Co.,  48  Hun   (N.  Y.),  190. 


259 


§  152  Granting  of  Injunctions. 

or  cannot  be  found.18  So,  where  the  defendant.1?,  husband  and  wife, 
were  non-residents,  and  the  injunction  was  served  out  of  the  State 
on  the  husband,  and  proof  was  made  that  the  wife  could  not  be 
found,  an  order  was  made,  upon  motion,  that  such  service  should 
be  deemed  valid,  and  directing  a  copy  of  such  order  to  be  served 
at  the  dwelling-house  of  the  defendants.  And  in  a  later  case  it  is 
decided  that  service  of  injunction  outside  of  the  State  to  re- 
strain a  husband  on  a  bill  filed  by  his  wife,  from  prosecuting  a 
suit  for  divorce  in  another  State  is  binding  on  the  husband  where 
both  he  and  his  wife  have  their  matrimonial  domicile  in  the  latter 
State,  and  her  domicile  is  also  there,  and  he  has  invoked  the  juris- 
diction of  the  courts  of  another  State  in  divorce  proceedings  on  a 
false  and  fraudulent  allegation  of  residence  therein.19  And  in  this 
connection  it  has  been  decided  that  leaving  a  copy  at  the  residence 
of  the  defendant  is  prima  facie  sufficient  service  of  an  injunction 
though  in  a  proceeding  for  contempt  the  defendant  may  purge 
himself  of  it  by  a  sworn  denial  of  notice  of  the  injunction.20 

§  152.  Subpoenas ;  service  of. — Under  the  Xew  York  chancery 
practice,  it  was  irregular  to  serve  an  injunction  on  a  party 
without  also  serving  him  with  a  subpoena  to  appear  and  answer;21 
but  the  irregularity  was  waived  by  the  defendant,  if  he  voluntarily 
appeared  and  answered  the  bill.22  And  in  an  early  Minnesota  case 
it  was  decided  that  the  service  of  an  injunction  without  the  service 
of  a  subpoena,   would  under  the  established  rule  in  equity  be 

18.  Haring  v.  Kauffman,  13  N.  J.  action  at  law,  to  stay  the  proceedings 
Eq.  397.  therein,    it  will  be  sufficient  to  stay 

18a.  Haring    v.    Kauffman,    13    N.  them  if  the   injunction  is   served  on 

J.  Eq.  397.  the   attorney,    and    on    any  of  such 

19.  Kempson  v.  Kempson,  63  N.  plaintiffs,  although  it  is  not  served 
J.  Eq.  783..  52  Atl.  360,  365,  92  Am.  on  all;  but  the  subpoena  must  be 
St.    Rep.    682.  served  on  each   defendant,  unless   he 

20.  Morris  v.  Bradford,  19  Ga.  elects  to  appear  voluntarily.  See, 
527.  See  Jordan  v.  Circuit  Court  of  also.  Parker  v.  Williams,  4  Paige, 
Wapello  Co.,  69  Iowa,  177,  28  N.  W.  439. 

548.  22.  Parker   v.   Williams,   4   Paige, 

21.  Seeber  v.  Hess,  5  Paige,  85,  439.  See,  also,  Thebaut  v.  Canova, 
holding    that    where    a    bill    is    filed       11   Fla.   143. 

against  several  joint  plaintiffs  in  an 

260 


Granting  of  Injunctions.  §  152a 

irregular,  and  in  such  a  case  the  injunction  would  on  motion  be 
dissolved,  but  the  proceedings  are  not  void  and  until  dissolved  the 
injunction  would  be  obligatory  upon  the  defendant.23  In  New 
Jersey  a  subpoena  must  be  served  with  the  injunction,  and  made 
returnable  within  the  time  prescribed  by  the  rule  for  a  return  of 
service  of  the  injunction;  and  the  rule  requires  the  injunction  to 
be  served  within  ten  days  after  it  is  issued,  and  a  return  of  service 
made  to  the  court  within  twenty  days  after  such  service.24  Under 
the  Federal  practice,  the  court  may,  on  the  showing  made  by  the 
bill,  issue  a  temporary  restraining  order  and  a  subpoena,  giving 
notice  to  defendant  to  appear  on  the  next  rule  day  of  the  court 
and  plead  to  or  answer  the  bill.25 

§  152a.  Substituted  service. — To  the  general  rule  in  chancery 
that  service  of  the  subpoena  in  chancery  to  answer  a  cross-bill  can- 
not be  made  upon  the  solicitor  of  the  plaintiff  in  the  original  bill  an 
exception  is  made  in  case  of  injunctions  to  stay  proceedings  at  law 
when  to  prevent  a  failure  of  justice,  the  court  will  order  service 
of  the  subpoena  to  be  made  upon  the  attorney  of  the  plaintiff  in 
the  suit  at  law.26  So  it  is  said  that  the  power  of  the  court  of  equity 
to  authorize  substituted  service  in  suits  instituted  in  aid  of  the 
defense  to  an  action  at  law,  where  the  plaintiffs  in  such  action 
are  non-residents  and  absent  from  the  State  is  well  established.27 
And  in  Maine  it  is  held  that  where  a  citizen  of  another  State  is 
prosecuting  in  the  courts  of  Maine,  a  claim  at  law  affecting  land 
there,  he  is  so  far  within  the  jurisdiction  of  a  Maine  court  of 
equity  as  to  be  liable,  upon  service  made  on  his  attorney  in  the  suit 
at  law,  and  notice  to  himself  where  he  resides,  to  an  injunction 
against  the  further  prosecution  of  his  action  at  law.28    But  in  an 

23.  Lash  v.  McCormick,  14  Minn.  4  Wash.  C.  C.  370;  Hitner  v.  Suck- 
482.  ley,  12  Fed.  Cas.  No.  6543,  2  Wash. 

24.  Lee  v.   Cargill,    10   N.   J.   Eq.       C.  C.  465. 

331.  27.  Crellin    v.    Ely,    13    Fed.    420, 

25.  Payne   v.    Kansas   R.   Co.,    46       Per   Field,  J. 

Fed.  546.  28.  Marco  v.  Low,  55  Me.  549,  per 

26.  Lowenstein  v.  Glidewell.  15  Barrows,  J.:  "  R.  S.  ch.  77,  §  9, 
Fed.  Cas.  No.  8575.  5  Dill.  325;  Eck-  provides  for  the  insertion  of  a  bill 
ert  v.  Banert,  8  Fed.  Cas.  No.  4266,  of  equity  in  a  writ  of  attachment,  in 

261 


§  153  Gkanti.no  ob  Injunctions. 

early  case  in  Iowa  where  in  a  suit  in  chancery  against  a  foreign 
corporation,  for  an  injunction  to  restrain  proceedings  at  law,  com- 
menced by  the  defendants  in  that  suit,  service  was  made  upon  one 
of  the  attorneys  of  the  corporation,  and  there  being  no  appearance 
the  bill  was  taken  pro  confesso,  and  a  decree  entered  perpetually 
enjoining  the  corporation,  its  agents  and  attorneys,  from  collecting 
a  portion  of  the  debt,  it  was  decided  that  the  service  upon  the 
attorney  was  not  such  service  upon  the  corporation  as  gave  the 
court  jurisdiction  to  order  a  perpetual  injunction.2* 

§  153.  Temporary  injunctions,  by  whom  granted. — When  not 
otherwise  specially  prescribed  by  law,  a  temporary  injunction  may 
be  granted,  under  the  New  York  Code,  by  the  court  in  which  the 
action  is  brought,  or  by  a  judge  thereof,  or  by  any  county  judge; 
and  where  it  is  granted  by  a  judge,  it  may  be  enforced  as  the  order 
of  the  court.30  A  general  term  of  the  Supreme  Court  can  revive 
and  continue  an  injunction,  pending  an  appeal,  but  it  should  be 
on  the  giving  of  a  new  undertaking,  as  upon  the  granting  of  the 
original  injunction.31    There  are  several  special  cases  in  New  York 

such  case  '  to  be  served  as  other  similar  to  that  of  New  York,  and  pro- 
writs.'  By  R.  S.  ch.  81,  §  17,  if  the  vides  that  an  injunction  may  be 
defendant  was  never  an  inhabitant  of  granted  at  the  time  of  commencing 
this  State,  or  has  removed  therefrom,  the  action,  or  any  time  afterwards  be- 
where,  as  here,  goods  and  estate  are  fore  judgment,  by  the  District  Court 
attached,  service  may  be  made  on  his  of  the  county,  or  the  judge  thereof, 
tenant,  agent,  or  attorney.  We  hold  or  in  his  absence  from  the  county  by 
the  service  on  the  attorney  a  suffi-  the  probate  judge,  on  its  appearing 
cient  service  of  this  bill  so  far  at  satisfactorily  to  the  court  or  judge, 
least  as  the  prayer  for  an  injunction  by  the  affidavit  of  the  plaintiff  or 
against  the  prosecution  of  the  action  his  agent,  that  the  plaintiff  is  en- 
Low  v.  Marco  is  concerned.  See,  also,  titled  thereto.  Gen.  Stats.,  1889,  § 
Chalmers  v.  Hack,  19  Me.  124.  Such  4334.  This  injunctive  jurisdiction  of 
service  would  not  have  been  sufficient  the  District  Court  and  judge  has  not 
perhaps  if  he  had  not  been  litigat-  been  affected  by  section  9  of  the  local 
ing  in  the  State.  Spurr  v.  Scoville,  statute  of  1889,  creating  the  Court  of 
3  Cush    5/8."  Common   Pleas   of   Sedgwick   county. 

29    Death  v.  Bank  of  Pittsburg,  1  L.  1889,  ch.  117,  §  9;   State,  etc.,  v. 

Iowa,  382.  Pierce,  51  Kan.  241,  32  Pac.  924. 

30.  Code  Civ.  Pro.,  §  606.  The  31.  Disbro  v.  Disbro,  37  How.  Pr. 
Kansas  statute  of  1868,  relating  to  147.  In  1849  it  was  decided  at  gen- 
injunctions,  is  in  its  general  features  eral  term  tnat  that  court  could  en- 

262 


GlJANTING    OF    INJUNCTIONS.  §  153 

m  which  an  injunction  can  be  granted  only  by  the  court.32  An 
injunction  against  the  New  York  city  board  of  health  can  be 
granted  only  by  the  Supreme  Court,  at  a  special  or  general  term  ;33 
and  against  a  banking  company,  under  the  New  York  banking 
laws,  only  by  a  justice  of  the  Supreme  Court.34  In  New  York  an 
application  for  an  injunction  is  a  non-enumerated  motion,  and  if 
made  to  the  court,  should  be  made  at  special  term.35  In  an  action 
in  the  New  York  Supreme  Court,  a  county  judge  may  make  an 
order  requiring  the  defendant  to  show  cause  why  an  injunction 
should  not  be  granted  in  the  action,  and  restraining  him  in  the 
meantime  from  doing  the  acts  sought  to  be  enjoined.36  And  as  the 
Court  of  Common  Pleas  of  the  city  and  county  of  New  York  was 
not  a  county  court,  a  judge  of  that  court  had  no  jurisdiction,  under 
section  606  of  the  Code  of  Procedure,  to  grant  an  ex  parte  injunc- 
tion in  an  action  pending  in  the  Superior  Court  of  the  same  city.37 
In  Tennessee  the  chancellors,  circuit  and  special  judges  are  author- 
ized by  statute  to  grant  injunctions.38  Under  the  Virginia  Code  of 
1873,  authorizing  every  judge  of  a  County  Court  to  award  injunc- 
tions, whether  the  judgment  or  proceeding  enjoined  be  of  a  superior 
or  inferior  court  of  his  county  or  district,  a  judge  of  a  County 
Court  may  award  an  injunction  on  a  bill  addressed  to  the  judge 
of  the  Circuit  Court,  and  the  fact  that  the  bill  was  afterwards  filed 
in  the  Circuit  Court  does  not  affect  the  validity  of  the  injunction.39 
A  judge  disqualified  by  affinity  cannot  grant  an  injunction.40  An 
injunction  order  made  by  a  judge  is  a  mandate  of  the  court,  and 
has  the  same  force  and  effect  as  if  made  by  the  court.41 

tertain  a  motion  for  an  injunction.  37.  People,   etc.,   v.   Edson,   52   N- 

Drake  v.  Hudson  Riv.  R.  Co.,  2  Code  Y.   Super.   Ct.   53. 

Rep.  67.  38.  Tenn.  Code,  §§  3946,  4434.  See 

32.  Code  Civ.  Pro.,  §§  1781.  1784,  Flippin    v.    Knaffle,   2   Cooper,   Tenn. 

1785.  1797,  1798,  1806,  1809.  Ch.  238,  243. 

i>3.  L.    1882,  ch.  410,   §   619.  39.  Rosenberger  v.  Bowen,  84  Va. 

34.  L.    1882,  ch.  409,   §§   131,  132.  660,  5   S.  E.  697. 

35.  General  Rules  of  Practice,  38.  40.  New    York,    etc.,    R.     Co.     v. 

36.  Morris  v.  Mayor,  17  Civ.  Pro.  Schuyler,  28  How.  Pr.  187. 

407,  construing  and  applying  §  606  of  41.  People    v.    Dwyer,    90    N.    Y. 

the  Code;  Babcock  v.  Clark,  23  Hun,       402. 

391. 

263 


§§  154,  155 


Granting  of  Injunctions. 


§  154.  Granting  on  Sunday  and  holidays  or  in  vacation. — In 
urgent  cases,  for  the  prevention  of  irreparable  injury,  an  ex  parte 
injunction  may  be  granted  on  a  holiday;42  and  even  on  a  Sunday, 
as  expressly  authorized  by  the  Illinois  statute  of  1874.*3  A  Code 
provision  that  if  an  injunction  be  granted  in  vacation  the  judge 
must  indorse  the  order  upon  the  petition,  is  held  to  be  directory 
merely  and  the  fact  that  the  judge  wrote  the  order  on  a  separate 
piece  of  paper  does  not  vitiate  the  injunction.44 

§  155.  Second  injunctions. — It  is  deemed  derogatory  to  the 
court  to  grant  a  second  injunction,  unless  the  first  one  has  been 
withdrawn  by  some  agreement,  between  the  parties,  and  satis- 
factory reasons  are  shown  for  a  renewal.40  Upon  the  plea  of  res 
adjudicata,  a  judgment  between  the  same  parties,  dissolving  an 
injunction,  is  a  perpetual  bar  to  a  subsequent  injunction  upon 
grounds  that  existed  anterior  to  the  judgment,  and  of  which  the 
plaintiff  in  injunction  might  have  availed  himself  in  the  first 
instance;46  and  even  where  the  first  proceeding  was  not  an  injunc- 

Monce,  L.  R.   16  Eq 


42.  Carr  v 
125. 

43.  Langabier  v.  Fairbury,  etc.,  R. 
Co.,  64  111.  243.  Jn  this  case  it  ap- 
pears that  the  railroad  company 
took  violent  possession  of  a  street  at 
midnight  between  Saturday  and  Sun- 
day, with  the  avowed  purpose  of  lay- 
ing a  track  through  it  before  Mon- 
day morning,  for  the  express  purpose 
of  evading  an  injunction.  An  in- 
junction was,  however,  granted  on 
Sunday,  and  sustained  as  valid. 
Breese,  J.,  in  the  course  of  a  very 
breezy  opinion,  said:  "Here,  this 
dies  non  juridicus  was  selected  by  the 
railroad  company  as  the  proper  day 
to  commit  a  great  outrage  upon  pri- 
vate and  p  iblic  rights,  believing  the 
arm  of  the  law  could  not  be  extended 
on  that  day  to  arrest  them  in  their 
high-handed  and  unlawful  design.  To 
the  complainant  the  acts  they  were 
organized  to  perpetrate  on  that  day 


were  fraught  with  irreparable  injury. 
Feeble,  indeed,  would  be  the  judicial 
arm  if  it  could  not  reach  such  mis- 
creants." 

44.  Jordan  v.  Circuit  Court  of 
Wapello  Co.,  69  Iowa,  177,  28  N.  W. 
548. 

45.  Livingston  v.  Gibbons,  4 
Johns.  Ch.    (N.  Y.)   571. 

46.  Porter  v.  More,  30  La.  Ann. 
230;  McMicken  v.  Morgan,  9  La.  Ann. 
208;  Fluker  v.  Davis,  12  La.  Ann. 
613.  Where,  on  a  second  application 
for  injunction  on  the  same  bill,  after 
a  refusal  on  the  first  application  has 
been  acquiesced  in  until  too  late  for 
a  writ  of  error,  the  only  new  fact  in- 
corporated by  amendment  in  the  bill 
is  one  which  was  known  to  the  com- 
plainant when  the  bill  was  first 
brought,  the  injunction  should  be  re- 
fused. Beckwith  v.  Blanchard,  79 
Ga.  303,  7  S.  E.  224. 


264 


Granting  of  Injunctions.  §  156 

tion,  but  a  rule  resorted  to  for  the  purpose  of  arresting  an  execu- 
tion, it  has  been  held  that  a  judgment  discharging  the  rule  is 
equivalent  to  one  dissolving  an  injunction,  so  as  to  sustain  the  plea 
of  res  ad  judicata  against  a  subsequent  injunction.47  But  where  it 
is  manifest  that  the  plaintiff  in  injunction  will  be  entitled  to 
another,  if  the  first  one  be  dissolved  for  want  of  evidence,  the  case 
may  be  remanded,  to  enable  him  to  supply  the  evidence  omitted.48 
And  so  where  a  temporary  injunction  has  been  granted  and  then 
dissolved,  and  the  bill  remains  on  file,  and  the  cause  is  still  within 
the  control  of  the  court,  it  is  not  error,  on  rehearing  of  the  order 
dissolving  the  injunction,  to  vacate  that  order  and  reinstate  the 
injunction  without  a  refiling  of  the  bill.49  In  Kansas  it  is  ex- 
pressly provided  that  no  injunction  shall  be  granted  by  a  judge, 
after  a  motion  therefor  has  been  overruled  on  the  merits  of  the 
application,  by  his  court;  and  where  it  has  been  refused  by  the 
court  in  which  the  action  is  brought,  or  a  judge  thereof,  it  shall 
not  be  granted  to  the  same  applicant  by  a  court  of  inferior  juris- 
diction, or  any  judge  thereof.50  Where  a  bill  is  filed  before  a  vice- 
chancellor  for  an  injunction,  and  after  hearing  both  parties  thereon, 
he  refuses  to  allow  it,  it  is  irregular  to  bring  the  same  question 
before  the  chancellor  by  a  new  bill,  while  the  former  suit  is  pend- 
ing before  the  vice-chancellor.51 

§  156.  Injunction  against  parties  only;  exception. — The  New 
York  Code  provides  for  an  injunction  only  against  a  party  to  the 
action  and  those  who  act  under  his  authority  ;52  and  is  declaratory 

47.  Trescott  v.  Lewis,  12  La.  Ann.  Edmonston  v.  McLoud,  19  Barb.  356. 
197.  It  is  a  well-settled  general  rule  that 

48.  Citizen's    Bank   v.    Crooks,   21  the  court  has  no  right  to  grant  an  in- 
La.  Ann.  324.  junction  against  a  person  who  is  not 

49.  Peck  v.  Spencer,  26  Fla.  23,  7  a  party  to  the  suit.     The  exceptions 
So.  642.  to   this   rule   consist  either   of  cases 

50.  Gen.  Stats.,   1889,  §  4341.  where  the  party  enjoined  is  the  mere 

51.  Winship  v.  Pitts,  3  Paige,  259.  solicitor,    or    agent,    or    tenant    of    a 

52.  Walton  v.  Grand  Belt  Co.,  56  party  to  the  suit,  having  no   rights 
Hun,  211,  9  N.  Y.  S.  375;  Farrington  involved  in  the  controversy,  or  where 


v.  Birdsall,  5  N.  Y.  W.  Dig.  421 
Fellows  v.  Fellows,  4  Johns.  Ch.  25 
Watson  v.   Fuller,  9   How.   Pr.   425 


the  right  has  been  already  deter- 
mined. Schalk  v.  Schmidt,  14  N.  J. 
Eq.   268.     An  injunction  directed  to 


265 


§157 


Granting  of  Injunctions. 


of  the  rule  which  obtained  in  the  former  court  of  chancery.53  Thi3 
rule  is  subject  to  the  exception  that  when  a  court  has  jurisdiction 
of  the  subject  matter  of  a  suit  or  proceeding,  it  may  enjoin  per- 
sons who  are  not  parties  from  interfering  with  the  property.  Thus, 
a  court  which  appoints  a  receiver  of  the  assets  of  an  insolvent  cor- 
poration may,  in  aid  of  that  appointment,  enjoin  any  subsequent 
interference,  by  way  of  levy  and  seizure  by  attachment  or  execu- 
tion, with  the  property  in  his  possession.54  It  is  not  usual  to  insert 
the  name  of  an  agent  in  the  order,  unless  for  special  reasons,  but 
the  insertion  of  the  agent's  name  will  not  vitiate  the  injunction.55 

§  157.  Subsequent  applications;  bar  to. — The  refusal  to  grant 
a  temporary  injunction  does  not  bar  a  subsequent  application,  upon 
different  affidavits,  for  in  such  a  case  the  doctrine  of  res  adjudicata 


several  persons,  appearing  on  its  face 
not  to  be  parties  to  the  suit,  is  in- 
operative as  to  them,  except  as  a  no- 
tice. Sage  v.  Quay,  Clarke's  Ch.  347. 
A  recent  preliminary  injunction  in 
the  U.  S.  Circuit  Court  was  as  fol- 
lows: Ordered,  adjudged  and  de- 
creed, that  an  injunction  do  issue  to 
M.  V.  T.,  sheriff  of  Aiken  county,  his 
deputies  and  agents,  enjoining  and 
restraining  them  from  further  inter- 
meddling, interfering  with,  keeping 
and  holding,  the  personal  property 
destrained  upon  by  him.  belonging  to 
the  petitioner,  as  receiver  of  the 
Southern  railroad,  or  in  his  care  and 
custody,  as  receiver  and  common  car- 
rier, and  that  this  injunction  remain 
of  force  until  the  further  order  of 
this  court.  It  is  further  ordered, 
that  the  said  property  be  restored  to 
the  custody  of  the  receiver  of  this 
court,  and  that  the  marshal  put  him 
in    possession    thereot." 

53.  Fellows  v.  Fellows..  4  Johns. 
Ch.  25,  per  Kent,  Ch.:  "The  doc- 
trine in  the  case  cited,  Iveson  v.  Har- 


ris, 7  Ves.  257,  is  correst  and  applic- 
able. '  I  find,'  said  Lord  Eldon,  '  the 
court  has  adhered  very  closely  to  the 
principle  that  you  cannot  have  an  in- 
junction except  against  a  party  to 
the  suit.  Upon  a  review  of  all  the 
cases,  I  think  the  practice  of  granting 
an  injunction  against  a  creditor  who 
is  not  a  party,  is  wrong.  The  court 
has  no  right  to  grant  an  injunction 
against  a  person  whom  they  have  not 
brought,  nor  attempted  to  bring,  be- 
fore the  court  by  subpoena.'  I  shall, 
accordingly,  dissolve  the  injunction 
as  against  those  persons  who  were  not 
made  parties  to  the  suit.  A  purchaser 
was  restrained,  in  Green  v.  Lowes.  3 
Bro.  C.  C.  21/,  from  paying  the  pur- 
chase money  on  a  bill  by  the  creditors 
of  the  vendor,  but  the  purchaser  was 
made   a   party" 

54.  Woerishoffer  v.  North  River, 
etc.,  Co.,  99  N.  Y.  398;  Attorney  Gen- 
eral v.  Guardian  Ins.  Co.,  77  N.  Y. 
272. 

55.  Farrington  v.  Birdsall;  5  N.  Y. 
W'kly  Dig.  421. 


266 


Granting  of  Injunctions. 


§157 


has  no  application;-  and  the  withholding  a  restraining  order  on 
the  first  application  simply  adjudges  the  insufficiency  of  the  evi- 
dence then  offered,  and  leaves  open  the  question  whether  it  shall 
be  allowed  on  another  and  better  showing.57     But  in  those  cases 
where  the  application  for  an  injunction  has  been  refused  a  motion 
to  reinstate  the  injunetion  is  not  the  proper  procedure.       The 
allowance  of  subsequent  applications  is  analogous  to  the  granting 
of  new  trials  for  newly  discovered  evidence.59    In  Iowa  no  injunc- 
tion shall  be  granted  by  a  judge  after  the  application  has  been  over- 
ruled by  the  court;  nor  by  a  court  or  judge,  when  it  has  been 
refused  by  the  court,  or  a  judge  thereof,  in  which  the  action  is 
brought;60  but  where  a  temporary  injunction  is  applied  for,  on  the 
.round  of  a  threatened  injury,  and  denied,  it  does  not  prevent 
plaintiff  from  again  applying  for  an  injunction  when  an  injury  is 
actually  inflicted.61    In  New  York,  if  an  application  for  an  order, 
made  to  a  judge  of  the  court,  or  to  a  county  judge,  is  wholly  or 
partly  refused,  or  granted  conditionally,  or  on  terms   a  subsequent 
application  in  reference  to  the  same  matter,  and  in  the  same  stage 
of  the  proceedings,  shall  be  made  only  to  the  same  judge,  or  to    he 
court.    If  it  is  made  to  another  judge,  out  of  court,  an  order  granted 
thereupon  must  be  vacated  by  the  judge  who  made  it,  or  if  he  is 
absent,  or  otherwise  unable  to  hear  the  application,  by  any  judge 
of  the  court,  upon  proof,  by  affidavit  of  the  facts.62    In  tins  State 
it  has  been  decided  that  where  there  is  no  adjudication  on  the 
merits  in  the  case  of  a  motion  for  an  injunction  pendente  lite  and 
such  adjudication  could  have  been  obtained  by  the  exercise  of 
proper  diligence  in  bringing  the  case  to  trial  a  motion  to  renew 
such  motion  is  properly  denied  where  the  same  facts  are  presented 
as  were  relied  on  originally.63 

56    Halcombe  v.  Com'rs,  89  N.  C.  59.  Blizzard  v.  Nosworthy,  50  Ga. 

346;  London  v.  Wilmington  City,  78       514.^  ^  ^   ^^  §  ^ 

N  57*:  Balcon.be  v.  Com'rs,  89  N.  C.  61.  Graves  .Key  City  Gas.  Co,  83 

34G-  Glass  v.  Clark,  41  Ga.  544.    The  Iowa,  714,  50  N.  W.  283 

principle  of  these  decisions  is  in  bar-  62.  Code  Ov    Pro     §  m. 

-Au         *•„„    «9«5   ni   the   New  63.  New   York   Bank   INote    Co.   v. 

vT  rt  oTp'roceduro  Hamilton  Bank  Note  E.  4  P.  Co.,  89 

Yts.  ct,e  Co  "     HaV,  -  **■  Hon.  612,  35  N.  Y.  Sopp.  U.S. 
Law  Rep.  1889,  50  S.  W.  244. 

267 


Injunction  Bond  and  Actions  on  it. 


CHAPTER  V. 
Injunction  Bond  and  Actions  on  it. 

Section  158.  History  of  injunction  bonds. 

159.  Same   subject   in   England. 
159a.  Object  of   injunction   bond. 

160.  Cases   when   bond   not    required — Discretion    as  to. 

161.  Requiring  bond — Discretion  as  to. 

162.  Same   subject   in  Maryland. 

163.  Bond   as   condition   precedent   to   injunction. 

164.  Same   subject. 

165  Where  enforcement  of  judgments  enjoined — In  New  York. 

166.  Same   subject — In   Iowa. 

167.  Same  subject — In  Arkansas — In  niinois. 

168.  Same   subject — In  New   Jersey. 

168a.  Bond  having  force  and  effect  of  judgment — Statutes. 

169.  Additional   bond  or  security. 

170.  Construction   of  bond. 

171.  Same   subject. 

172.  Construction  of  bond  continued. 

172a.  Necessity  of  compliance   with   statute. 
172b.  Effect  of  errors  and  omissions  in  bond. 

173.  Execution  of  injunction  bond  by  applicant. 

174.  Enforcing  State  bond  in   federal   courts. 

175.  Bond   essential   to  recovery   of  injunction   damages. 

176.  Same  subject— In  Minnesota,  Kentucky.  Pennsylvania. 

176a.  Action  on  bond  as  effected  by  malice — Want  of  probable  cause. 

177.  Action  for  damages  on  bond — When  accrues. 
177a.  Same   subject — Evidence — Burden  of  proof. 

178.  Same  subject — Evidence  of  damage. 

179.  Breach  of  condition  of  bond. 

180.  Breach   of   bond   further   considered. 

181.  Same   subject — In   Alabama  and  Ohio. 

182.  Same  subject — In  Kentucky,  California,  Iowa  and  Maine. 

183.  Venue — Action  pending  an  appeal. 

184.  Parties  to  actions  on  injunction  bonds — Nominal  parties. 
184a.  Parties   plaintiff    continued. 

185.  Parties  plaintiff  concluded. 

186.  Requisites  of  bond  as  basis  of  action. 

187.  Complaint  on  injunction  bond — Demurrer. 

188.  Same  subject. 

189.  Allegations  of  special   damage. 

268 


Injunction  Bond  and  Actions  on  it.  §  158 

Section  189a.  Effect  of  plea  or  answer. 
189b.  Defenses — Generally. 
189c.  Defenses — Want  of  jurisdiction. 
189d.  Presumptions. 

Section  158.  History  of  injunction  bonds. — Formerly  when 
temporary  injunctions  were  granted  upon  the  petition  or  other  ex 
parte  showing  of  the  applicant,  and  were  afterwards  dissolved, 
neither  law  nor  equity  furnished  any  remedy  to  the  defendant  for 
the  damages  caused  by  them,  for  they  were  regarded  as  flowing 
from  the  judgment  and  order  of  the  court,  and  not  from  the  plain- 
tiff, if  he  did  nothing  more  than  to  sue  in  good  faith  for  the  injunc- 
tion awarded  him.  The  injustice  which  so  often  resulted  to  the 
defendant  from  hasty  orders  of  injunction,  led  the  courts  to  adopt 
measures  of  indemnity  and  protection  for  those  who  were  enjoined, 
and  to  require  bonds  from  the  plaintiff  for  the  payment  of  damages 
to  defendant  in  case  of  a  final  decision  averse  to  the  injunction.1 
The  rights  of  courts  of  equity  to  require  the  applicant  for  an  in- 
junction to  furnish  an  injunction  bond  arises  from  the  discretion 
which  those  courts  have  to  grant  or  not  to  grant  the  injunctions, 
and  to  declare  the  conditions  upon  which  they  may  be  granted.2 

1.  Russell  v.  Farlej,  105  U.  S.  Forum  Romanum,  p.  196,  repeated  in 
433,  26  L.  Ed.  1060;  Bein  v.  Heath,  Bacon's  Abridgment,  title  Injunction, 
12  How.  (U.  S.)  168,  13  L.  Ed.  939;  C,  speaking  of  the  course  where  an 
St.  Louis  v.  St.  Louis  Gaslight  Co.,  answer  is  put  in,  denying  the  equity 
82  Mo.  349.  of   the   bill,   followed   by  a   rule  nisi 

2.  Jones  v.  Florida  R.  Co.,  41  Fed.  to  dissolve  the  injunction,  says:  'The 
70,  73.  In  Russell  v.  Farley,  105  U.  plaintiff  must  show  cause  either  upon 
S.  433,  438,  26  L.  Ed.  1060,  the  his-  the  merits,  or  upon  filing  of  excep- 
tory  of  injunction  bonds  is  thus  tions;  if  upon  the  merits,  the  court 
traced:  "The  power  to  impose  such  may  put  what  terms  they  please  upon 
conditions  is  founded  upon  and  arises  him,  as  bringing  in  the  money,  or 
from  the  discretion  which  the  court  paying  it  to  the  party,  subject  to  the 
has  in  such  cases,  to  grant  or  not  to  order  of  the  court,  or  giving  judg- 
grant,  the  injunction  applied  for.  It  ment  with  a  release  of  errors,  and 
is  a  power  inherent  in  the  court  as  a  consenting  to  bring  no  writ  of  error, 
court  of  equity,  and  has  been  exer-  or  to  give  security  to  abide  the  order 
cised  from  time  immemorial.  The  on  hearing,  or  the  like.'  See,  also, 
older  authorities  refer  to  numerous  Newland's  Ch.  Prac.  223,  224;  Kerr, 
instances  in  which  it  has  been  exer-  Injunctions,  212,  622;  Story.  Eq. 
cised.       Chief    Baron    Gilbert    in    his  Jur.   §§   9586,   959d.     In  Marquis  of 


§159 


Injunction  Bond  and  Actions  on  it. 


§  159.  Same  subject  in  England. — In  England  undertakings 
were  required  from  the  applicant  not  only  for  the  purpose  of  com- 
pensating defendant  but  also  to  enable  the  court  to  punish  plaintiff 
where  he  unfairly  presented  his  case.    At  first  the  practice  was  to 


Downshire  v.  Lady  Sandys,  6  Ves. 
Jr.  107,  A.  D.  1801,  Lord  Eldon  said 
if  there  was  a  real  doubt  on  the  sub- 
ject in  controversy,  he  would  direct 
an  issue,  '  taking  care  that  if  in  the 
result  of  such  a  direction  the  de- 
fendant should  be  prejudiced  by  not 
being  permitted  to  cut  in  the  mean- 
time trees  claimed  to  be  ornamental, 
the  plaintiff  should  undertake  to  pay 
the  value  if  the  decision  should  be 
against  him.'  In  a  similar  case,  in 
1825,  the  same  judge  made  an  order 
that  the  plaintiff  should  go  before 
the  master  and  give  such  security  as 
would  in  the  master's  judgment  se- 
cure to  the  defendants  the  value  of 
all  the  trees  which  they  should  be 
prevented  from  cutting  by  the  in- 
junction, in  case  it  should  finally 
turn  out  in  the  judgment  of  the 
court  that  they  ought  not  to  have  been 
enjoined  in  equity.  Wombwell  v. 
Belasyse,  6  Ves.  Jr.  110,  note.  In 
Wilkins  v.  Aikin,  17  Ves.  Jr.  422. 
where  a  bill  was  filed  to  prevent  the 
infringement  of  a  copyright;  but  it 
being  doubtful  whether  the  defendant 
did  more  than  make  allowable  ex- 
tracts from  the  plaintiff's  work,  Lord 
Eldon  said:  'The  proper  course  in 
this  instance  will  be  to  permit  this 
work  to  be  sold  in  the  meantime; 
the  defendant  undertaking  to  account 
according  to  the  result  of  the  action.' 
The  same  practice  has  prevailed  in 
this  country  in  some  cases  in  pursu- 
ance of  statute,  and  in  others  by  the 
action  of  the  court  itself.  As  early 
as  1723  a  law  was  passed  in  Mary- 
land that  any  person  desiring  to  pro- 


ceed in  equity  against  a  verdict  or 
judgment  rendered  against  him  in 
the  County  Court,  should  be  required 
to  give  security  in  double  the  amount 
of  the  debt  and  all  costs  and  dam- 
ages that  should  accrue  in  the  chan- 
cery court,  or  should  be  occasioned  by 
the  delay,  unless  the  chancery  court 
should  decree  to  the  contrary,  and  in 
all  things  obey  such  order  or  decree 
as  tlie  court  should  make.  In  1793  an 
addiiional  law  was  passed  to  the  ef- 
fect that  whenever  an  application 
should  be  made  for  an  injunction  to 
stay  proceedings  at  law  the  chancel- 
lor should  have  power  and  discretion 
to  require  the  applicant  to  give  :t 
bond  to  the  plaintiri  at  law  with  con- 
dition to  perform  such  order  or  de- 
cree as  the  chancellor  should  finally 
pass  in  the  cause.  Similar  laws  we  re- 
passed in  Virginia  in  1787  and  in 
New  Jersey  in  1799.  and  no  doubt  in 
other  States  at  an  early  date.  Their 
object  was  where  an  adjudication  had 
already  been  nad  at  law  to  make  it 
compulsory  on  the  chancellor  to  re- 
quire security  before  granting  an  in- 
junction. The  jealousy  of  the  courts 
of  law  at  the  interference  of  the 
courts  of  chancery  with  their  judg- 
ments is  a  matter  of  historical  notori- 
ety. But  these  laws  did  not  interfere 
with  the  chancellor's  discretionary 
power  to  require  a  bond  in  all  other 
cases.  Regulations  substantially  sim- 
ilar to  those  above  adverted  to  were 
prescribed  by  general  rule  of  the 
Court  of  Chancery  of  New  York  prior 
to  the  adoption  of  the  Revised  Stat- 
utes.   In  1828  they  were  codified  with 


270 


Injunction  Bond  and  Actions  on  it. 


§159 


require  undertakings  only  where  the  application  was  ex  parte.3 
In  England,  an  undertaking  has  been  styled  "  the  price  of  an 
injunction."  * 


amendments    in   that    revision.      But 
the   rule  as  well  as   the   statute    re- 
lated only  to  injunctions  for  staying 
proceedings     at    law.     In     1830    the 
chancellor  of  New  York  for  the  first 
time  made  a  general  rule    (No.   31) 
that  where  no  special  provision  was 
made  by  law  as  to  security,  the  vice- 
chancellor  or  master  who  allowed  an 
injunction  out   of   court  should   take 
from  the  complainant  or  his  agent,  a 
bond    to    the    party    enjoined,    either 
with  or  without  sureties  in  the  dis- 
cretion of  the  officer,  in  such  sum  as 
might  be   deemed   sufficient,  not  less 
than   $500.   conditioned   to   pay   such 
party  all   damages  he  might   sustain 
by   reason   of   such   injunction   if   the 
court   should    decide    that    the  com- 
plainant   was     not     entitled     to    the 
same;    and   that  the  damages   might 
be    ascertained     by     a     reference    or 
otherwise,  as  the  court  should  direct. 
1  Hoff.  Ch.  Pr.  80;    1   Barb.  Ch.  Pr. 
622;   Cayuga  Bridge  Co.  v.  Magee.  2 
Paige,  116,  122.    The  object  no  doubt 
was  to  prevent  hasty  and  oppressive 
injunctions  from  being  issued  by  sub- 
ordinate officers.     This  rule  enlarged 
and  made  applicable  to  all  courts  and 
judges,  was  copied  in  the  New  York 
Code    of    Procedure    of    1848,    §    195 
(now  §  222),  and  has  been  followed 
in  other  codes  and  systems  of  prac- 
tice   in   other    States.      See    2    R.    S. 
Wisconsin,  748;  also  laws  of  Illinois, 
Iowa  and  Colorado.     It  was  substan- 
tially adopted  in  the  chancery  rules 
of  New   Jersey  in   1853.   except  that 
it  was  left  to  the  discretion  of  the 
officer  to  require  a  bond  or  not.     It 
was  copied  in  the  statute  of  Minne- 
sota  under   which   the   bonds    in   the 


present  case  were  taken,  as  may  be 
seen  by  comparing  it  with  the  sec- 
tion of  said  statutes  already  cited." 
3.  Smith  v.  Day,  L.  R.  21  Ch.  D. 
421,  per  Jessel,  M.  R. :  "The  under- 
taking was  invented  by  Lord  Justice 
Knight  Bruce  when  vice  chancellor, 
and  was  originally  inserted  only  in 
ex  parte  orders  for  injunctions.  Its 
object  was,  so  to  say,  to  protect  the 
court  as  well  as  the  defendant  from 
improper  applications  for  injunc- 
tions. If  the  evidence  in  support  of 
the  application  suppressed  or  mis- 
represented facts  the  court  was  en- 
abled not  only  to  punish  the  plain- 
tiff but  to  compensate  the  defendant. 
By  degrees  the  practice  has  extended 
to  all  cases  of  interlocutory  injunc- 
tion. The  reason  for  this  extension 
was  that  though  when  the  applica- 
tion was  disposed  of  on  notice,  there 
was  not  the  same  opportunity  for 
concealment  or  misrepresentation, 
still,  owing  to  the  shortness  of  time 
allowed,  it  was  often  difficult  for  the 
defendant  to  get  up  his  case  properly, 
and  as  the  evidence  was  taken  by  af- 
fidavit, and  generally  without  cross- 
examination,  it  was  impossible  to  de- 
cide on  which  side  the  truth  lay.  The 
court,  therefore,  required  the  under- 
taking in  order  that  it  might  be  able 
to  do  justice  if  it  had  been  induced  to 
grant  the  injunction  by  false  state- 
ment or  suppression." 

May  not  be  necessary  in  action 
by  attorney  general  in  behalf  of 
crown.  Attorney-General  v.  Albany 
Hotel  Co.  (C.  C.)  [1896],  2  Cb.  696, 
75  Law  T.  R.   140. 

4.  Tucker  v.  New  Brunswick  Trad 
■.  ing  Co.    (1890),  44  Ch.  D.  249. 


271 


§§  159a,  1(50       Injunction  Bond  and  Actions  on  it. 

§  159a.  Object  of  injunction  bond. — The  office  of  an  injunction 
bond  is  not  to  create  or  measure  the  liability  of  the  complainant  fur 
damages,  but  to  secure  the  payment  of  such  damages,  up  to  the 
amount  of  the  penalty  of  the  bond.5  So  it  is  said :  "  An  injunc- 
tion is  a  high  prerogative  writ,  executed  and  enforced  in  a  sum- 
mary manner.  By  sen-ice  of  the  writ,  the  party  is  required  imme- 
diately to  withdraw  and  cease  operations;  hence  the  propriety  in 
requiring  a  bond  for  the  indemnity  of  the  party  in  such  damages 
as  he  may  sustain,  by  reason  thereof."  6 

§  1G0.  Cases  when  bond  not  required;  discretion  as  to. — On 

the  granting  of  a  preliminary  injunction  against  infringement, 
complainant  will  not  be  required  to  give  a  bond  for  the  protection 
of  defendants,  when  the  latter  have  been  guilty  of  bad  faith  towards 
him.7  Under  the  United  States  Revised  Statutes  of  1874  a  Federal 
court  may  grant  a  restraining  order,  "  with  or  without  security,  in 
the  discretion  of  the  court  or  judge."  In  Ohio  where  the  solicitor 
of  a  municipality  enjoins  the  misappropriation  of  money  by  the 
council,  he  is  not  required  to  give  a  bond.9  Where  an  injunction 
is  applied  for  in  New  York  by  a  domestic  municipal  corporation 
or  by  a  public  officer  in  behalf  of  the  people  or  of  such  a  corpora- 
tion, no  security  is  required,  except  specially  required  by  statute.1" 
The  object  of  the  rule  of  the  New  Jersey  Court  of  Equity  provid- 

5.  Kohlsaat  v.  Crate,  144  111.  14,  the  record  showing  that  the  defend- 
19,  32  N.  E.  481.  ants  in  this  suit  have  been  guilty  of 

6.  Gear  v.  Shaw,  1  Pin.  (Wis.)  bad  faith  towards  the  complainant, 
608,  615.  Per  Miller,  J.  See  State  to  such  an  extent  that  they  are  not 
v.  Milwaukee,  102  Wis.  509,  513,  78  equitably,  as  I  think,  entitled  to  the 
N.   W.   756,  wherein   it   is   said   that  protection  from  complainant." 

the  writ  of  injunction  as  given  to  the  8.  §  718. 

Supreme  Court  by  the  Constitution  The  discretion  of  a  federal 
being  classed  with  mandamus,  habeas  court  in  fixing  the  amount  of  the 
corpus,  quo  warranto,  and  certiorari,  bond  or  in  imposing  terms  as  a  con- 
is  a  quasi  prerogative  writ,  and  that  dition  of  granting  an  injunction  is 
all  of  such  writs  were  given  to  this  not  restricted  by  any  statute  or  rule, 
court  for  prerogative  uses  only.  Cimiotti   Unhairing  Co.  v.   American 

7.  Pasteur  Chamberland  Filter  Co.  Fur  R.  Co.,  158  Fed.  171. 

v.  Funk,  52  Fed.  146,  where  Blodgett,  9.  Forsythe  v.  Winans.  44  Ohio  St. 

J.,    said:      "A    bond    would    be    re-  277,  7  N.  E.  13. 

quired    as    a    condition    of    granting  10.  Code  Civ.  Pro.,  §  1990. 

this  injunction  but  for  the  proof  in 

272 


Injunction  Bond  and  Actions  on  it. 


160 


ing  that  the  chancellor  or  master  may  at  his  discretion  take  from 
the  complainant  a  bond  conditioned  to  pay  to  the  defendant  such 
damages  as  he  may  sustain  if  the  court  shall  eventually  decide  that 
complainant  was  not  equitably  entitled  to  the  injunction,  was  to 
secure  good  faith  in  the  application  and  to  provide  indemnity  to 
the  defendant  against  the  effects  of  an  injunction  unfairly  ob- 
tained.11 The  Nebraska  statute  providing  for  the  execution  of  a 
supersedeas  bond  on  the  dissolution  of  a  temporary  injunction,  does 
not  authorize  the  execution  of  such  bond  where,  pending  an  appli- 
cation for  granting  a  temporary  injunction,  a  restraining  order  has 
been  issued  to  restrain  defendant  from  a  commission  of  the  act 
complained  of  until  the  application  for  the  temporary  injunction 
can  be  heard;  and  a  writ  of  mandamus  will  not  lie  to  a  judge  of 
the  District  Court,  requiring  him  to  fix  the  amount  of  such  bond 
to  be  filed  by  plaintiff,  where  a  temporary  injunction  is  refused, 
notwithstanding  a  restraining  order  may  have  been  formerly 
granted.12    In  Indiana,  under  a  statute  there  in  force,  it  is  decided 


11.  Smith  v.  Kuhl,  26  N.  J.  Eq. 
97.  See  Dodd  v.  Flavel,  2  C.  E. 
Green,  255.  where  the  chancellor  re- 
fused to  require  security  because  the 
complainant's  right  was  clear  and  the 
infraction  of  that  right  established. 
See,  also.  Henwood  v.  Jarvis.  27  N. 
J.  Eq.  247.  It  has  been  ruled  "  that 
a  dissolution  of  the  injunction  is 
not,  of  itself,  evidence  that  he  was 
not  equitably  entitled  to  it.  And 
though  it  may  have  been  improvi- 
dently  granted,  and  for  that  cause 
be  dissolved  before  answer,  that  will 
not,  if  the  case  is  fairly  presented 
by  the  bill  and  verification  entitle 
the  defendant  to  damages.  But  if  the 
application  be  dising?nuous,  malafide, 
or  made  without  due  regard  to  the 
rights  of  the  court  or  the  defendant, 
in  the  application,  the  complainant 
is  to  be  regarded  as  not  having  been 
equitably  entitled  to  the  injunction." 
Smith  v.  Kuhl.  26  N.  J.  Eq.  97.    The 


chancellor  may  require  the  bond  to 
be  filed  with  his  clerk  in  escrow,  and 
in  such  case  the  defendant  has  no 
right  therein  until  the  chancellor  or- 
ders it  delivered  to  him.  Brown  v. 
Easton,  30  is.  J.  Eq.  725,  and  see 
New  York,  etc..  R.  Co.  v.  Dennis.  40 
N.  J.  L.  340. 

12.  State  v.  Wakeley.  28  Neb.  431, 
44  N.  W.  488,  per  Reese,  C.  J.:  "The 
statutes  of  this  State  do  not  provide 
in  terms  for  the  execution  of  a  bond 
of  indemnity  when  a  restraining  or- 
der is  issued  pending  an  application 
for  an  injunction ;  yet  we  have  no 
doubt  of  the  right,  indeed  of  the 
duty,  of  the  judge,  when  granting  a 
restraining  order,  to  require  that  the 
party  against  whom  the  order  is  is- 
sued shall  be  indemnified  against  loss 
resulting  therefrom."  See  also.  State 
v.  Green,  48  Neb.  327,  67  N.  W.  162; 
Neb.  Code  Civ.  Proe.,  §§  677  et  seq. 


273 


18 


161 


Injunction  Bond  and  Actions  on  it. 


that  a  bond  is  not  required  in  a  case  where  an  injunction  is  awarded 
in  the  final  decree.13 


§  161.  Requiring  bond;  discretion  as  to. — In  cases  where  no 
bond  is  expressly  required  by  statute,  a  court  of  equity  in  the  exer- 
cise of  a  sound  discretion  may,  as  the  condition  of  granting  a  pre- 
liminary injunction,  require  the  applicant  therefor  to  give  a  bond 
or  other  security  for  the  protection  of  defendant.14  A  bond  may  be 
required  conditioned  to  pay  the  damages  sustained  by  defendant 
from  an  interim  restraining  order.15  And  the  court  may  in  its  dis- 
cretion fix  the  terms  of  the  bond  where  they  are  not  prescribed  by 
statute.16  Where  the  United  States  applying  for  an  injunction 
gives  no  bond  to  indemnify  defendant,  as  a  private  suitor  would 
be  compelled  to  do,  the  Federal  courts  will  not  grant  a  preliminary 
injunction  in  a  case  of  conflicting  allegations,  but  will  suspend 
injunctive  relief  until  final  hearing.17 


13.  Lake  Erie  &  W.  R.  Co.  v. 
Cluggish,  143  Ind.  347,  42  N.  E.  743. 

14.  Act  Ga.  Nov.  7,  1889.  re- 
quired the  railroad  therein  named,  in 
case  it  ran  within  five  miles  of  the 
town  of  T.,  to  run  into  that  town,  if 
a  sum  equal  to  the  excess  of  the  cost 
of  that  route  over  any  other  within 
the  five  mile  limits  should  be  depos- 
ited in  bank  by  the  citizens  of  T. 
when  the  road  reached  the  limit,  sub- 
ject to  the*  check  of  the  company 
when  the  road  was  built  through 
them.  Held,  that,  as  a  condition  of 
the  granting  of  an  injunction  against 
the  railroad  company's  violation  of 
the  act.  the  citizens  of  T.  should  be 
required  to  execute  a  bond,  as  soon 
as  the  excess  is  determined,  to  make 
the  required  deposit.  Macon  &  B. 
R.  Co.  v.  Stamps  (Ga.),  11  S.  E.  442. 
Bleckley,  C.  J.,  said :  "  A  court  of 
equity  may  and  should  always  im- 
pose just  terms  as  a  condition  to  its 
interference  by  interlocutory   injunc- 


tion in  behalf  of  suitors.  The  grant- 
ing and  continuing  of  an  injunction 
is  not  matter  of  strict  right  in  the 
parties  but  of  sound  discretion  in  the 
judge  or  the  court.  In  the  exercise 
of  such  discretion  it  seems  highly  in- 
expedient to  hold  one  of  the  parties 
to  the  litigation  absolutely  bound, 
w'lile  the  other  party  remains  per- 
fectly free.  This  would  have  the  ap- 
pearance of  subjecting  the  former  to 
the  will  or  even  the  caprice,  of  the 
latter."  See  Salinas  v.  Aultman,  49 
S.  C.  325,  27  S.  E.  407. 

The  judge  in  his  discretion 
may  determine  the  amount  of 
the  bond. — New  York  Bank  Note 
Co.  v.  Kerr,  77  111.  App.  53. 

15.  Byam  v.  Cashman,  78  Cal.  525, 
21    Pac.    113. 

16.  Newell  v.  Partee,  10  Hump. 
(Tenn.)    325. 

17.  United  States  v.  Jellico,  etc., 
Coal  Co..  43  Fed.  898. 


274 


Injunction  Bond  and  Actions  on  it. 


§162 


§  162.  Same  subject  in  Maryland. — Ordinarily  an  injunction 
to  stay  proceedings  at  law  will  not  be  granted  without  bond  and 
surety  given  by  the  plaintiff  for  injunction  to  the  plaintiff  at  law.ls 
But  there  may  be  an  exception  to  this  general  rule  where  a  judg- 
ment about  to  be  enforced  appears  to  be  unwarranted  and  its  en- 
forcement would  be  ruinous  to  a  person  who  had  no  opportunity 
to  defend;  and  an  injunction  may  sometimes  be  granted  without 
bond  in  favor  of  an  equitable  owner  of  property  which  is  about  to 
be  sold  to  satisfy  a  judgment  against  a  person  who  in  good  faith 
parted  with  the  property  before  the  judgment  was  obtained  against 
him.19    Under  the  Maryland  statute  of  1886,  the  injunction  bond 


18.  Walsh  v.  Smith,  3  Bland,  Ch. 
(Md.)    9. 

19.  Cape  Sable  Company's  Case,  3 
Bland,  Ch.  606,  per  Bland,  Ch. :     "  I 
can  discover  no  error  in  granting  the 
injunction   without   bond;    if   in   any 
case  a  bond  should  be  dispensed  with, 
this  is  one,  and  the  decisions  of  my 
predecessors  in  office  fully  warranted 
the  issuing  of  this   injunction.     The 
time,  the  manner,  the  effect,  and  the 
immediate  ruinous  consequences  from 
the  hasty  and  unwarranted  judgment, 
demanded    the    immediate    inteiposi- 
tion  of   this   court;    and  unless   com- 
pelled to  demand  an  injunction  bond, 
it  should  be  dispensed  with.     In  the 
case  of  Hampsen  v.  Edelin.  2  H.  &  J. 
64,   no   bond  was  given   to  prosecute 
the   injunction  that   issued.     In  that 
case  an  execution  was  laid  on  a  piece 
of   land    that    the    complainant   had 
purchased    and   obtained   a   bond    for 
the  conveyance  of.  prior  to  the  rendi- 
tion  of  the   judgment.      Also   in    the 
case  of   Stewart    v.    Yates.  3   Bland, 
Ch.   615,  an   injunction   issued,   with- 
out  bond,   to    prevent   land   from   be- 
ing sold  under  an  execution,  founded 
on    a     judgment     against     the    legal 
holder  of  the  estate.     Tn  those  cases, 
as   insisted    on    by    the    defendant's 


counsel  in  this  case,  the  injunctions 
were  obtained  by  him  who  was  no 
party  to  the  suits  at  law,  and  only 
went  to  protect  particular  property 
from  the  executions.  It  is  very  true, 
that  those  injunctions  were  intended 
to  free  particular  property  from  the 
executions:  and  the  reasons  are  as- 
signed in  the  bills  why  such  property 
should  not  be  liable  to  the  execu- 
tions; and  no  one,  for  a  moment, 
could  doubt  but  that  the  same 
grounds  applicable  to  the  whole  prop- 
erty real  and  personal,  which  was 
once  completely  owned  by  the  defend- 
ant at  law,  would  be  protected,  if, 
prior  to  the  judgment  as  applicable 
to  the  real,  or  prior  to  the 
fieri  facias,  as  applicable  to  the 
personal,  he  had  parted  with  the 
same,  so  as  to  vest  the  equitable  in- 
terest in  him,  or  them,  who  should 
claim  the  protection  of  a  court  of 
equity.  The  principle  on  which  those 
injunctions  issued  was,  that  the  party 
applying  for  them  was  the  equitable 
owner  of  the  property  which  was  at- 
tempted to  be  sold  to  pay  the  debts 
of  a  person  who,  before  the  judg- 
ments, had  bona  fide  parted  with  the 
property.  In  those  cases,  it  was  con- 
tended,  that   the   complainants   were 


275 


§  103  Injunction  Bond  and  Actions  on  it. 

or  security  is  wholly  a  matter  of  the  court's  discretion,  and  its 
refusal  to  require  such  a  bond  is  not  reviewable."  In  this  State 
there  is  said  to  be  no  statute  which  expressly  directs  that  a  bond 
shall  be  given  before  an  injunction  to  stay  execution  of  a  judgment 
can  be  issued ;  it  is  left  to  the  discretion  of  the  court,  but  the  univer- 
sal practice  has  been  to  require  such  bonds  except  in  extreme  cases, 
and  generally  in  double  the  amount  of  the  judgment  to  be  re- 
strained, as  was  provided  by  the  act  of  1723.21 

§  163.  Bond  as  condition  precedent  to  injunction. — In  Kansas 
an  injunction  order  is  not  operative  until  the  injunction  undertak- 
ing is  furnished.22  An  order  conditionally  granting  a  temporary 
injunction  is  not  operative  until  a  bond  is  filed  in  conformity  with 
law,  and  the  order  of  the  court  or  judge  granting  the  same;  for  the 
granting  of  a  temporary  injunction  being  largely  within  the  dis- 
cretion of  the  court  of  original  jurisdiction,  the  applicant  must 
comply  with  the  conditions  imposed  by  the  court  or  the  injunction 
conditionally  granted  will  not  take  effect.23  In  Nebraska  it  is  also 
decided  that  the  execution  of  an  undertaking  is  essential  before  a 
temporary  injunction  order  can  become  effective.24  The  North 
Carolina  Code  is  peremptory,  that  "  the  judge  shall  require,  as  a 
condition  precedent  to  the  issuing  of  an  injunction,  that  the  clerk 

not,  at  law,  parties;  but  here  as  the  dertaking,  executed  by  one  or  more 
complainants  claim  in  virtue  of  their  sufficient  securities."  State  v.  Eg- 
interest  in  The  Cape  Sable  Company,  gleston,  34  Kan.  714,  10  Pac.  3. 
against  whom  the  judgment  was  ren-  Where  a  sheriff  is  temporarily  en- 
dered,  they  were  parties  to  that  joined  from  calling  an  election  to  de- 
cause,  and  as  such  were  not  entitled  termine  upon  a  permanent  county- 
to  an  injunction  without  bond."  seat,    the    injunction    to    take    effect 

20.  Commissioners  v.  School  Com-  upon  the  execution  of  a  bond,  but  the 
missioners,  77  Md.  283,  26  Atl.  115.  bond   is   not  executed,   the   order   al- 

21.  Wagner  v.  Shank,  59  Md.  313,  lowing  the  injunction  is  void.     State 
328.  v.   Kearney  County  Com'rs,  42  Kan. 

22.  Gen.     Stats.,     1889,     §     4337;  739,  22  Pac.  735. 

State    v.     Rush    County     Com'rs,    35  23.  Van    Fleet  v.    Stout,    44   Kan. 

Kan.  150,  10  Pac.  535.     The  Kansas  523,  24  Pac.  960. 

statute    declares    that   no    injunction  24.  State   v.   Green,   48   Neb.   327, 

shall    operate    "until    the    party   ob-  67  N.  W.   162. 

taining  the   same   shall  give  an  un- 

276 


Injunction  Bond  and  Actions  on  it.  §  163 

shall  take  from  the  plaintiff  an  undertaking,"  and  it  has  been  held 
to  be  error  for  the  court  to  disregard  a  provision  which  was  in- 
tended for  the  protection  of  parties  against  the  abuse  of  the  process, 
and  for  which  error  an  appellate  court  would  vacate  the  injunc- 
tion ;25  though  perhaps  the  filing  of  the  undertaking  in  the  appellate 
court  might  be  regarded  as  a  sufficient  compliance  with  the  statute.26 
In  North  Carolina  before  the  Code  an  injunction  could  not  be 
obtained  against  a  judgment  for  money  except  on  giving  a  bond 
for  double  the  amount  of  the  judgment,  but  under  the  Code  the 
amount  of  the  undertaking  in  such  cases  is  left  to  the  discretion 
of  the  judge.27  Under  the  Indiana  Revised  Statutes  of  1881, 
§  1153,  declaring  that  no  injunction  shall  be  granted  until  the 
party  asking  it  shall  give  bond  for  damages  and  costs,  and  section 
1154,  providing  that  when  an  injunction  is  granted  upon  the  hear- 
ing, after  a  temporary  restraining  order,  a  second  bond  need  not 
be  given  unless  the  former  shall  be  deemed  insufficient,  but  that 
plaintiff  and  his  sureties  shall  remain  liable  upon  the  original 
undertaking,  where,  after  the  granting  of  a  preliminary  restrain- 
ing order,  the  same  is  continued  until  further  order  by  an  order 
of  the  court  which  does  not  mention  the  bond,  the  bond  remains 
in  force  during  the  continuance,  though  the  order  of  continuance 
was  made  in  accordance  with  an  agreement  between  the  parties, 
since  the  agreement  amounted  to  nothing  more  than  a  waiver  of  a 
formal  hearing.28  The  plaintiff's  failure  to  give  the  bond  required 
for  a  preliminary  injunction  will  not  prevent  him  from  obtaining 
a  perpetual  injunction  upon  the  final  hearing.29 

25.  Miller  v.  Parker,  73  M.  C.  58;  26.  Richards    v.    Baurman     65    N 

Hirsh   v.    Whitehead,   65   N.    C.   516;  C.    162.                                          ' 

Sledge  v.  Blum,  63  N.  C.  374.     See,  27    Faison  v.  Mellwaine,  72  N    C 

also,  Wilson  v.  Featherstone,  120  N.  312 

C.  449.    27    S.    E.    121.      See    N.    C.  28.  Stone   v.   Keller,   4   Ind.    App. 

Code,   §   341.  436    30  N    E    m3 

A  restraining  order  issued  with-  29.  Harrison    v.     Supervisors,     51 
out  the  giving  of  the  undertaking  re-  Wis.    645.      See   Nicholson   v    Camp- 
quired  by  §  341  of  the  Code  is  only  bell,  15  Tex.  Civ.  App.  317,  40  S   W 
irregular   and   not   void.     McKay   v.  167. 
Chaplin,  120  N.  C.  159,  26  S.  E.  701. 

277 


§164 


Injunction  Bond  and  Actions  on  it. 


§  164.  Same  subject. — The  South  Carolina  Code,  though  mak- 
ing it  the  duty  of  a  judge  who  grants  an  injunction  to  require  an 
undertaking  from  the  plaintiff,  does  not  make  the  giving  or  filing 
of  the  undertaking  a  condition  precedent  to  the  granting  of  the 
injunction  order;  but  the  judge  may  allow  the  plaintiff  a  reason- 
able time  within  which  to  file  the  undertaking.30  The  Tennessee 
statute  requires  that  the  applicants,  in  order  to  entitle  themselves 
to  the  benefit  of  the  writ,  shall  give  bond  with  good  security,  in 
double  the  amount  of  the  judgments,  conditioned  to  pay  the  amount 
of  the  judgments  with  interest  and  costs,  or  to  perform  the  decree 
of  the  court  in  case  the  injunction  is  dissolved,  and,  also,  to  pay 
such  damages  as  may  be  sustained  by  the  wrongful  suing  out  of 
the  injunction.31  Section  620  of  the  New  York  Code  provides 
that  where  special  provision  is  not  otherwise  made  by  law  for  the 
security  to  be  given  upon  an  injunction  order  "  the  party  applying 
therefor  must  give  an  undertaking,"  but  this  requirement  is  not  in 
the  nature  of  a  condition  precedent,  and  the  failure  to  give  the 
undertaking  so  required  is  only  an  irregularity  which  can  be  cured 


30.  Code  Civ.  Pro.,  §  243.  pro- 
vides that  "  when  no  provision  is 
made  by  statute  as  to  security  on  an 
injunction,  the  court  or  judge  shall 
require  a  written  undertaking  on  the 
part  of  plaintiff,  with  or  without 
sureties,  to  the  effect  that  plaintiff 
will  pay  to  the  party  enjoined  such 
damages,  not  exceeding  an  amount  to 
be  specified,  as  he  may  sustain  by 
reason  of  the  injunction,  if  the  court 
shall  finally  decide  that  plaintiff  was 
not  entitled  thereto."  Held,  that  the 
section  does  not  make  it  the  duty  of 
the  judge  to  exact  an  undertaking  as 
a  condition  precedent  to  the  grant  of 
an  injunction.  In  Meinhard  v. 
Youngblood.  37  S.  C.  223,  15  S.  E. 
947,  Pope,  J.,  said:  "Herein  injunc- 
tion proceedings  differ  from  those  in 
nttachment,  for  in  the  latter  the  stat- 
ute is  imperative  that  such  undertak- 


ing shall  be  given  before  the  attach- 
ment can  legally  issue.  Not  so  in 
cases  of  injunction.  .  .  .  Rule  63 
of  the  Circuit  Court  rules,  in  con- 
nection with  the  rules  of  law,  in  the 
matter  of  injunctions  sustain  the  ac- 
tion of  the  Circuit  Court  judge  in 
granting  14  days  within  which  the 
undertaking  required  of  plaintiffs 
should   be  filed." 

31.  Tenn.  Code  §  4439.  Where  the 
statute  does  not  prescribe  the  con- 
ditions of  the  bond,  the  judge  may  in 
his  fiat  specify  those  conditions;  and 
if  a  bond  taken  by  the  master  i9 
broader  in  its  conditions  or  greater 
in  its  penalty  than  the  statute  or  the 
fiat  requires,  it  will  be  good  only  to 
the  extent  required.  Hubbard  v.  Fra- 
vell,  12  Lea  (Tenn.).  304.  See,  also, 
Ragan  v.  Aiken,  9  Lea  (Tenn.),  623; 
Ranning  v.  Reeves,  2  Tenn.  Ch.  267. 


278 


Injunction  Bond  and  Actions  on  it. 


§165 


nunc  pro  tunc,32  and  for  this  purpose  an  undertaking  may  be  al- 
lowed to  be  filed  on  appeal  from  the  order  granting  the  injunction.33 
The  omission  to  file  the  undertaking  forthwith  is,  however,^  a 
ground  for  vacating  the  injunction  on  the  motion  of  the  opposite 
party.34 

§  165.  Where  enforcement  of  judgments  enjoined;  in  New 
York.— In  order,  under  the  Code,  to  stay  proceedings  upon  a  money 
judgment  the  party  applying  for  the  injunction  must  pay  into 
court  the  amount  of  the  judgment  with  interest  and  costs,  or  in 
lien  thereof  give  an  undertaking  for  such  payment,  and  must  also 
give  an  undertaking  to  pay  the  party  enjoined  all  damages  and 
costs  which  may  be  awarded  to  him  in  the  injunction  suit;33  but 
the  two  undertakings  may  be  contained  in  the  same  instrument.36 
A  judgment  entered  upon  confession  is  within  the  above  provi- 
sion,37 and  so  is  a  money  judgment  operating  as  a  lien  upon  the 
enjoiner's  land;38  but  an  injunction  which  restrains  the  sale  of 
plaintiff's  property  on  a  judgment  and  execution  against  a  third 
person  is  not  within  the  provision.39     The  failure  to  furnish  such 


32.  Manly  v.  Leggett,  17  N.  Y. 
Supp.  68;  O'Donnell  v.  McMurn,  3 
Abb.  Pr  391.  Sections  611-618  pro- 
vide for  cases  in  which  the  failure  to 
give  the  undertaking  required  is  a 
fatal  defect  on  appeal  from  the  in- 
junction order,  Carpenter  v.  Keat- 
ing, 10  Abb.  Pr.  N.  S.  223;  and  on 
motion  to  vacate.  Eastman  v.  Starr, 
22  Hun.  465.  See.  also,  as  to  when 
giving  of  bond  a  condition  precedent. 
Mullen  v.  Martin,  5  App.  Div.  450, 
40   N.    Y.    Supp.   725. 

In  Michigan,  How.  St.,  §  6689, 
provides  that  no  injunction  shall  is- 
sue to  stay  proceedings  at  law  in  any 
personal  action,  after  judgment, 
unless  the  party  applying  for  the  in- 
junction shall  execute  a  bond  to 
plaintiff  in  the  proceeding  at  law  in 
such  sum  as  will  secure  him  against 
loss  by  the  issuing  of  the  injunction. 


Under  this  statute  it  was  held  that 
a  person  claiming  property  which  is 
about  to  be  sold  under  an  execution 
cannot  obtain  a  temporary  injunction 
against  the  sale  without  filing  such 
bond.  Hinkle  v.  Baldwin  (Mich.), 
53  N.  W.  534. 

33.  N.  Y.  Attrition  Co.  v.  Van 
Tuyl,  2  Hun  (N.  Y.),  373;  Pratt  v. 
Underwood,  4  Civ.  Pro.   (N.  Y.)    167. 

34.  General  Court  Rule  4;  John- 
son v.  Casey,  28  How.  Pr.  (N.  Y.) 
492. 

35.  Code  Civ.  Pro.,  §  613. 

36.  Code  Civ.  Pro..  §  618. 

37.  Farrington  v.  Freeman,  2  Edw. 
Ch.    (N.  Y.)    572. 

38.  Rossow  v.  Bank  of  Commerce, 
22   N.  Y.  W.  Dig.  448. 

39.  Hegeman  v.  Wilson,  8  Paige 
(N.  Y.),  29. 


270 


§  1C6  Injunction  Bond  and  Actions  on   it. 

bonds  will  be  fatal  to  the  injunction  order  both  on  a  motion  to 
vacate,40  and  upon  appeal  from  it.41  In  order  after  issue  joined  to 
enjoin  the  trial  of  an  action  in  New  York  wherein  the  complaint 
demands  a  money  judgment,  an  undertaking  must  be  given  to  pay 
the  party  enjoined,  his  damages  and  costs  in  the  enjoined  action, 
and  also  the  damages  and  costs  that  may  be  awarded  him  in  the 
injunction  action;  and  an  injunction  shall  not  be  granted  after 
verdict,  report,  or  decision  and  before  judgment,  unless  a  sum 
sufficient  to  cover  the  sum  awarded  and  the  costs  be  first  paid  into 
court  or  an  undertaking  therefor  be  given  by  the  applicant  for  the 
injunction.42 

§  166.  Same  subject;  in  Iowa. — In  Iowa  where  proceedings  to 
collect  a  judgment  are  sought  to  be  enjoined,  the  injunction  bond 
must  be  conditioned  for  the  payment  of  the  judgment,  and  the 
penalty  must  be  double  the  amount  of  the  judgment;43  but  this 
statutory  rule  has  no  application  where  only  the  sale  of  certain 
property  is  sought  to  be  enjoined.44  In  Texas  on  the  dissolution 
of  an  injunction  in  restraint  of  a  judgment,  the  judgment  creditor 
is  not  entitled  to  a  judgment  on  the  injunction  bond  for  the  amount 
of  the  enjoined  judgment;  but  is  entitled  to  a  judgment  against 
the  principal  debtor  and  the  sureties  on  the  bond  for  ten  per  cent, 
on  the  amount  of  the  enjoined  judgment  as  damages  besides  inter- 
est.45 In  Virginia  as  early  as  1744,  it  was  provided  that  before  an 
injunction  should  be  granted  to  restrain  proceedings  at  law  in  any 
action,  suit,  or  judgment  the  party  praying  the  injunction  should 
give  a  bond  with  security  to  satisfy  all  money,  tobacco,  and  costs 
then  due  or  which  might  become  due  to  the  plaintiff  in  the  action 

40.  Eastman  v.  Starr,  22  Hun  (N.  Adams,  J.:     "The  denial  of  the  right 
*•))  465.  to  sell  a  particular  piece  of  property 

41.  Carpenter  v.  Keating,  10  Abb.  under  general  execution  is  not,  in  any 
Pr.  N.  S.  (N.  Y.)  223.  proper  sense,  a  denial  of  the  right  to 

42.  N.  Y.  Code  Civ.  Pro.,  §§  611,  proceed  under  the  judgment." 

6*2.  45.    Fernandez   v.    Casey,    77    Tex. 

43.  Iowa  Code,  §§  3396,  3S97.  452,  14  S.  W.  149;  Texas  &  New  Or- 

44.  Hardin  v.  White,  63  Iowa.  633,  leans  R.  Co.  v.  White,  57  Tex    132 
16    N.    E.    580,    19    N.    E.    822,    per 

280 


Injunction  Bond  and  Actions  on  it.      §§  167,  108 

or  judgment  to  be  stayed,  and  this  provision  was  introduced  into 
the  Virginia  Code  of  1819,  together  with  a  provision  that  the 
party  so  enjoining  should  also  give  bond  with  security  to  satisfy 
all  such  "  costs  and  damages  as  shall  be  awarded  in  case  the  in- 
junction be  dissolved."  46  But  probably  in  Virginia,  and  certainly 
in  West  Virginia,  the  court  has  no  power  to  require  an  injunction 
bond  on  staying  the  enforcement  of  a  judgment  against  executors 
as  such.  Such  a  bond  given  has  no  validity,  either  as  a  statutory 
or  common  law  bond.47 

§167.  Same  subject;  in  Arkansas;  Illinois. — Formerly  in 
Arkansas  in  order  to  enjoin  the  collection  of  a  judgment  the  bond 
required  by  statute  was  conditioned  that  the  sureties  would  abide 
the  decision  in  the  injunction  suit  and  pay  all  sums  of  money 
adjudged  against  their  principal  therein,  and  the  damages  recover- 
able on  the  injunction  bond  were  the  amount  of  the  judgment 
enjoined  and  the  damages  assessed  on  the  dissolution  of  the  in- 
junction.48 But  under  the  late  statute  the  sureties  do  not  under- 
take to  pay  the  amount  of  the  enjoined  judgment  but  only  the 
damages  the  party  enjoined  may  sustain,  should  the  injunction 
prove  to  be  wrongful.49  Where  a  party  sued  out  an  injunction  to 
restrain  the  collection  of  a  void  and  unjust  judgment,  which  was 
dissolved,  and  he  immediately  filed  a  second  bill  for  the  same  pur- 
pose, which  was  held  sufficient,  and  in  the  meantime  judgment  was 
recovered  on  the  injunction  bond  for  the  amount  of  the  void  judg- 
ment, it  was  held  that  as  it  was  inequitable  to  allow  the  collection 
of  the  void  judgment,  it  was  equally  so  to  allow  the  enforcement 
of  the  latter  judgment,  and  that  it  should  be  enjoined.50 

§168.  Same  subject;  in  New  Jersey. — The  New  Jersey 
Chancery  Act  providing  that  no  injunction  shall  issue  to  stay 
proceedings  at  law  in  any  personal  action  after  verdict  or  judg- 
ment on  the  defendant's  application,  unless  a  deposit  be  made 

46.  State  v.  Johnson,  28  W.  Va.  56,  48.  Hunt  v.  Burton,  18  Ark.  188. 
61;  Lomax  v.  Picot,  2  Rand.  (Va.)  49.  Neal  v.  Taylor,  56  Ark.  521,  20 
264.                                                                      S.  W.  352. 

47.  State  v.  Johnson,  28  W.  Va.  50.  Weaver  v.  Poyer,  79  111.  417. 
56. 

281 


§  168a  Injunction  Bond  and  Actions  on  it. 

or  bond  given,  does  not  apply  to  a  suit    instituted  in  a  court  of 
another  State  upon  a  judgment  recovered  in  New  Jersey.51 

§  168a.  Bond  having  force  and  effect  of  judgment;  statutes. — 
In  Alabama  the  early  statutes  gave  to  every  injunction  bond  the 
force  and  effect  of  a  judgment  upon  the  dismissal  of  the  bill  and 
an  execution  could  issue  against  the  obligors.52  And  by  an  early 
statute  in  Texas  it  was  provided  that  "  every  bond  executed  for 
the  purpose  of  obtaining  an  injunction,  shall  on  the  dissolution  of 
the  said  injunction,  have  the  force  and  effect  of  a  judgment,  and 
the  party  or  parties  enjoined  may  take  out  execution  against  all 
the  obligators  in  the  bond."  Under  this  statute  it  was  held  that 
it  was  not  error,  on  the  dissolution  of  an  injunction,  to  enter  up 
judgment  against  the  principal  and  his  sureties  in  the  injunction 
bond.53  Under  a  statute  of  this  character  where  a  bond  departs 
substantially  from  the  form  prescribed  by  the  statute,  it  will  not 
have  the  attributes  intended  to  be  imparted  by  the  statute.54  A 
statutory  judgment  thus  resulting  has  been  held  to  be  a  judgment 
against  the  surety.55  But  under  such  a  statute  it  has  been  decided 
that  where  several  defendants  in  a  judgment  at  law  join  in  a  bill 
for  an  injunction,  and  in  the  execution  of  the  required  statutory 
bond,  and  the  injunction  is  perpetuated  as  to  a  part  of  them  only 
and  dissolved  as  to  the  others,  the  statute  docs  not  give  to  the  bond 
the  effect  of  a  judgment  as  against  the  latter,  nor  as  against  the 
sureties.56 

51.  Cairo,  etc.,  Railroad  v.  Titus,  See  Wiswell  v.  Munroe,  4  Ala.  9, 
26  N.  J.  Eq.  94.  The  eightieth  sec-  holding  that  a  bond  so  executed  as 
tion  of  the  New  Jersey  Chancery  Act  to  enjoin  a  judgment  at  law  had  the 
prohibiting  the  granting  of  an  injunc-  force  and  effect  of  a  judgment  upon 
tion  to  stay  proceedings  at  law  unless  a  dissolution  of  the  injunction,  with- 
the  money  due  be  paid  into  court  or  out  any  order  of  the  chancellor  to 
a  bond  be  given,  is  eminently  manda-  that  effect. 

tory,  and  a  temporary  injunction  is  53.  Western  v.  Woods,  1  Tex.  1. 

within   the   prohibition.      Phillips   v.  54.  Hanks  v.  Horton,  5  Tex.  103. 

Pullen,  45  N.  J.  Eq.  157,  16  Atl.  915.  55.  Dubberly  v.  Black's  Adm'r,  38 

52.  Newson  v.  Thornton  Adm'r,  61  Ala.   193. 

Ala.  95;   Dubberly  v.  Black's  Adm'r,  56.  Hill  v.  McKenzie,  39  Ala.  314. 

38  Ala.  193. 

282 


Injunction  Bond  and  Actions  on  it. 


169 


§  169.  Additional  bond  or  security. — A  court  of  equity,  if  not 
limited  by  statute,  having  a  discretionary  power  in  respect  to  the 
amount  of  the  injunction  bond,  may  at  any  time  in  the  exercise 
of  its  discretion  require  from  the  complainant  an  additional  bond.57 
And  additional  security  may  be  required,  in  a  proper  case,  as  a 
condition  of  continuing  an  injunction.08  In  most  of  the  States  if 
the  sum  named  in  the  injunction  bond  is  insufficient  to  indemnify 
the  defendant,  it  is  the  duty  of  the  court,  upon  his  motion,  to  set 
aside  the  injunction  unless  additional  security  be  given.59  And 
when  a  preliminary  injunction  has  issued  in  an  action  brought 
against  a  person  individually  the  court  cannot,  on  subsequently 
bringing  in  the  same  person  and  another  as  executors,  and  addi- 
tional parties  defendant  and  continuing  the  injunction  as  against 
them,  permit  the  injunction  bond  given  in  the  action  as  originally 
instituted  to  stand,  and  declare  it  good  and  sufficient  as  to  all  the 


57.  Russell  v.  Farley,  105  U.  S. 
433,  26  L.  Ed.  1060,  where  a  second 
for  $79,000  was  required  in  addition 
to  the  first  bond  for  $10,000. 

58.  Goldmark  v.  Kreling,  25  Fed. 
340.  A  preliminary  injunction  was 
first  issued,  and  afterwards  the  court 
ordered  the  injunction  dissolved,  un- 
less plaintiffs  should  give  an  under- 
taking in  a  much  larger  sum,  which 
was  given.  It  recited  the  commence- 
ment of  the  suit,  and  was  conditioned 
"  in  case  said  injunction  shall  issue," 
etc.  The  complaint  in  an  action  on 
the  undertaking  alleged  the  granting 
of  the  injunction  and  the  making  of 
the  order  requiring  a  further  under- 
taking, and  that  in  compliance  with 
such  order,  "  and  in  order  to  con- 
tinue in  force  said  injunction,"  the 
undertaking  in  suit  was  given.  The 
answers  denied  that  defendants 
caused  the  undertaking  to  be  filed, 
and  averred  that  plaintiffs  in  the  in- 
junction  suit   caused  it   to   be  filed, 


and  further  averred  that  defendants 
had  no  knowledge  of  the  "  order  and 
character "  of  the  prior  proceedings 
in  the  suit.  Held,  that  if  defendants 
executed  the  undertaking  for  the  pur- 
pose mentioned,  it  is  immaterial 
whether  they  or  their  principals 
caused  it  to  be  filed;  also  that,  as  the 
undertaking  recited  the  pendency  of 
the  suit,  defendants  were  bound  to 
take  notice  of  the  order  and  charac- 
ter of  the  proceedings  therein;  and 
therefore  that  the  pleadings  ad- 
mitted that  the  undertaking  was 
given  to  continue  in  force  the  injunc- 
tion previously  issued,  and  defend- 
ants could  not  contend  that  the  words 
"shall  issue"  in  the  undertaking  re- 
ferred to  a  final  injunction  in  the 
suit.  Lambert  v.  Haskell,  80  Cal. 
611,  22  Pac.  327. 

59.  Hayden  v.  Keith,  32  Minn. 
277;  Leavitt  v.  Dabney,  40  How. 
Pr.  (N.  Y.)  277;  Loveland  v.  Burn- 
ham,  1  Barb.  Ch.  (N.  Y.)   65. 


283 


§  170  Injunction  Bond  and  Action-  <>\   it. 

defendants,  but  must  require  a  new  bond  or  undertaking.*0  A 
certified  check  may  be  accepted  by  the  court  in  lieu  of  an  injunc- 
tion bond,  and  this,  even  after  the  injunction  ordered  has  been 
dissolved  for  want  of  a  sufficient  bond.61 


§  170.  Construction  of  bond. — An  injunction  bond  must  be 
construed  according  to  the  statute  in  force  when  it  was  executed, 
and  not  according  to  a  statute  which,  though  enacted  before,  did 
not  take  effect  until  after,  the  execution  of  the  bond ;  the  statute 
and  its  construction  enter  into  and  form  part  of  the  bond  so  as  to 
determine  the  liability  of  the  sureties,  and  that  liability  cannot  be 
extended  by  the  stipulations  of  the  parties  to  the  injunction  suit." 
The  undertaking  as  to  damages  need  not  be  confined  to  the  defend- 
ant restrained  but  may  extend  to  any  defendant  though  not  re- 
strained who  asks  for  it,  but  not  to  a  defendant  who  does  not  ask 
for  it,  and  in  particular  not  to  one  who  has  not  been  served  and 
has  not  appeared.63  If  the  damages  to  the  different  parties  en- 
joined are  clearly  several,  the  injunction  bond  will  be  held  to  be 
several  though  its  language  would  in  ordinary  cases  indicate  merely 
an  obligation  to  the  defendants  jointly.64  Words  in  the  condition 
of  a  bond  which  are  repugnant  to  the  clause  of  indemnity  are  void 
and  may  be  rejected  as  mere  surplusage,  thus  not  affecting  the 
validity  of  a  bond  which  is  otherwise  sufficient.6"  An  injunction 
bond  taken  in  Alabama  in  1863  by  a  register  in  chancery,  in  pur- 
suance of  an  order  of  the  chancellor  granting  the  injunction,  was 
not  void  on  the  ground  that  those  officers  belonged  to  a  government 
in  rebellion  against  the  United  States,  for  the  acts  of  the  Alabama 

60.  Bergmann  v.  Salmon,  59  Hun      injunction,  the  judge  shall  require  a 
(N.  Y.),  295,  23  N.  Y.  S.  482.  bond   with    or    without    sureties,    it 

61.  Goldmark  v.  Kreling,  25  Fed.      cannot  be  assigned  as  error  that  non- 
349,  resident  plaintiffs  were  permitted  to 

62.  Mix  v.  Vail,  86  111.  40.  give    bond   without    sureties.      Mein- 

63.  Tucker     v.     New     Brunswick       hard  v.   Strickland,   37   S.  C.  223,   7 
Trading   Co.,    L.   R.    44    Ch.   D.  249.       S.  E.  838. 

Under   Code   Civ.   Pro.  S.   C,   §   245,  64.  Sturgis  v.  Knapp,  33  Vt.  486. 

providing    that,    where    no    provision  65.    Conner   v.    Paxson,    1    Blackf. 

is  made  by  statute  as  to  security  on      (Ind.)   207. 

284 


Injunction  Bond  and  Actions  on  it.  §  171 

courts  and  their  officers  during  the  Civil  War  were  not  void  merely 
because  of  the  rebellion.66 

§  171.  Same  subject. — If  an  injunction  is  granted  on  condition 
that  a  bond  of  a  specified  amount  be  filed,  and  the  bond  is  filed 
with  no  other  order  as  to  payment  of  damages,  the  defendant  can 
recover  no  greater  amount  than  the  penalty  of  the  bond.67  Under 
a  Code  provision  that  if  the  court  does  not  prescribe  the  terms  of 
an  injunction  bond,  the  terms  shall  be  that  the  obligor  will  pay  to 
the  person  enjoined  such  damages  as  he  may  sustain,  if  it  be  finally 
decided  that  the  injunction  ought  not  to  have  been  granted,  it  is 
held  that  a  bond,  conditioned  to  be  paid  if  the  injunction  be 
adjudged  wrongfully  obtained,  is  in  substance  such  as  is  required, 
and  a  right  of  action  accrues  thereon  at  once  when  the  injunction 
is  dissolved.68  The  fact  tlhat  the  court  granting  an  injunction  had 
no  jurisdiction,  and  that  the  injunction  was  absolutely  void,  does 
not  make  the  injunction  bond  void,  so  as  to  defeat  defendant's  right 
to  recover  thereon  for  attorney's  fees  and  other  expenses  incurred 
by  him  in  resisting  the  application  for  the  injunction  and  procuring 
its  dissolution.69  In  North  Carolina  it  has  been  decided  that  a 
bond  required  by  the  Code  being  for  the  sole  purpose  of  indemni- 
fying the  party  enjoined,  is  not  void  because  it  does  not  specify 
a  sum  in  which  the  obligors  are  bound,  and  such  an  omission  does 
not  enable  the  surety  to  impeach  his  voluntary  undertaking.70 

66.  Estes  v.  Prince,  47  Ala.  269;  If    an     injunction     against     a 

Griffin  v.  Ryland,  45  Ala.  688.  money    judgment    is    granted    "  on 

67.  Glover  v.  McGaffey,  56  Vt.  294,  the  usual  terms,"  it  is  granted  upon 
per  Taft,  J. :  "  If  the  order  had  been  the  terms  of  giving  a  bond  with  con- 
made  that  the  injunction  should  issue  dition  as  prescribed  by  law;  and  if 
upon  condition  that  the  orators  pay  the  penalty  is  the  ordinary  one  of 
all  the  damages  sustained  by  the  de-  about  double  the  amount  of  the  judg- 
fendants,  the  case  might  merit  a  dif-  ment,  the  bond  should  be  construed 
ferent  conclusion,  but  no  such  order  as  in  compliance  with  the  law.  Har- 
was  made  and  the  parties  must  abide  man  v.  Howe,  27  Gratt.  (Va.)  676. 
by  the  law  as  established  in  Sturgis  69.  Robertson  v.  Smith,  129  Ind. 
v.  Knapp,  33  Vt.  486,  36  Vt.  439."  422,  28  N.  E.  857,  distinguishing  Jen- 
See  Ciniotti  TJnhairing  Co.  v.  Amer-  kins  v.  Parkhill,  25  Ind.  473. 

ican  Fur  R.  Co.,  158  Fed.  171.  70.    North    Carolina   Gold    Co.    v. 

68.  Alexander  v.  Gish.  88  Ky.   13,  Ore  Co.,  79  N.  C.  48. 
9  S.  W.  801. 

285 


172 


Injunction  Bond  and  Actions  ox  it. 


§  172.  Construction    of    bond    continued. — The     contracting 

clauses  of  the  injunction  bond  are  to  be  construed  in  accordance 
with  general  rules  for  the  interpretation  of  contracts  and  so  as  to 
make  the  bond  capable  of  being  carried  into  i  ff<  cl  if  it  can  be 
without  violating  the  intention  of  the  parties.71  The  validity  of 
the  bond  depends  largely  upon  its  conformity  to  the  requirements 
prescribed  by  the  order  or  writ  of  injunction.72  In  this  connection 
it  is  decided  that  an  order  requiring  a  bond  to  be  given  in  favor 


71.  Lambert  v.  Haskell,  80  Cal. 
611,  22  Pac.  327. 

72.  Upon  the  commencement  of  a 
suit  the  bill  praying  for  an  injunc- 
tion pending  the  hearing,  which  on 
final  hearing  should  be  made  perpet- 
ual, the  court  granted  an  order  to 
show  cause  why  the  temporary  in- 
junction should  not  be  granted  as 
prayed  for,  and  also  ordered  that  the 
defendants  be  restrained  from  com- 
mitting the  acts  until  the  decision 
upon  said  motion;  said  preliminary 
order  to  take  effect  upon  the  execu- 
tion of  a  bond  conditioned  to  pay 
such  damages  as  defendants  might 
sustain  by  reason  of  said  restraining 
order.  A  bond  was  executed  reciting 
the  filing  of  the  complaint,  condi- 
tioned as  follows :  "  In  consideration 
of  the  premises,  and  of  the  issuing 
of  said  writ  of  injunction,"  the  par- 
ties promise  "  that,  in  case  said  writ 
shall  issue,"  they  will  pay  damages, 
etc.  Upon  the  motion  to  show  cause 
the  bill  was  dismissed  for  want  of 
jurisdiction.  Held,  that  the  injunc- 
tion for  which  the  bond  was  given 
was  not  the  writ  directed  to  be  issued 
by  the  preliminary  order,  and  that 
no  action  could  be  maintained  on  the 
bond.  Byam  v.  Cashman,  78  Cal. 
525,  21  Pac.  113.  Under  an  order  of 
the  United  States  District  Court  that 
a   bond   be   given    by   plaintiffs   "  to 


save  the  parties  harmless  from  the 
effect  of  the  injunction  issued  in  this 
cause,"  a  bond  was  given,  conditioned 
to  pay  "  to  the  said  .  .  .  defend- 
ant in  said  injunction  all  such  dam- 
ages as  he  may  recover  against  us, 
in  case  it  should  be  decided  that  the 
said  writ  of  injunction  was  wrong- 
fully issued."  Held,  that  the  bond 
should  be  construed  to  mean  that 
such  damages  would  be  paid  as  the 
obligee  should  recover  by  a  suit  on 
the  bond  itself,  and  that,  thus  con- 
strued, the  bond  was  valid  and  con- 
formable to  the  order,  and  covered 
all  damages  arising  from  the  wrong- 
ful issue  of  the  injunction.  Meyers  v. 
Block,  120  U.  S.  206,  30  L.  Ed.  642, 
7  S.  Ct.  525.  Under  an  order  requir- 
ing the  party  suing  out  an  injunction 
to  give  bond,  conditioned  to  pay  all 
such  costs  and  damages  as  may  be 
awarded  should  the  injunction  be  dis- 
solved, a  bond,  conditioned  to  pay  any 
decree  or  order  that  may  be  awarded, 
and  all  costs  and  damages  incurred 
or  sustained  if  the  injunction  be  dis- 
solved, though  more  onerous  in  its 
terms  than  required  by  the  order,  is 
a  valid  common-law  bond.  Snyder, 
J.,  dissenting.  State  v.  Purcell,  31 
W.  Va.  44,  5  S.  E.  301. 

Compare  as  to  statement  in  text, 
Blankenship  v.  Ely,  98  Va.  359,  36 
S.  E.  484. 


286 


Injunction  Bond  and  Actions  on  it  §  172a 


of  each  of  several  defendants  is  not  complied  with  by  giving  a 
bond  in  favor  of  the  defendants  jointly.73 

§  172a.  Necessity    of    compliance    with    statute. — A    strictly 
literal  compliance  with  the  provisions  of  a  statute  as  to  injunction 
bonds  is  not  essential  to  their  validity,  as  the  object  of  most  statutes 
of  this  character  is  to  compel  complainant  to  secure  from  loss  or 
damage  the  party  against  whom  he  obtains  an  injunction.74     A 
statutory  bond  or  undertaking  beyond  what  is  required  by  the 
statute  is  to  that  extent,  however,  without  consideration  and  in- 
operative.75   So  the  insertion  of  conditions  in  an  injunction  bond 
not  required  by  law,  but  not  against  law,  will  not  vitiate  those 
that  are  required  by  law.76     And  an  injunction  bond  conditioned 
to  pay  sums  not  expressly  required  by  the  statute  to  be  secured 
is  nevertheless  good.77    And  though  the  conditions  of  an  injunction 
bond  are  not  so  extensive  as  the  statute  requires,  yet,  if  it  contains 
a  material  part  of  the  condition  required,  the  bond  is  not  void, 
but  binds  the  obligors  to  the  extent  of  such  condition  or  conditions, 
and  where  the  bond  contains  some  conditions   or  promises  not 
required  by  the  statute,  and  some  of  those  which  are  required,  it 
is  valid  and  binding  to  the  extent  of  the  latter.78    So  unless  a  bond 
contravenes  the  policy  of  the  law,  or  is  repugnant  to  some  pro- 
vision of  a  st'atute  it  is  valid  at  common  law  notwithstanding  an 
attempt  may  have  been  made  to  execute  it  pursuant  to  a  statute 
with  the  terms  of  which  it  does  not  strictly  comply.79    A  condition 
in  an  injunction  bond  to  pay  the  obligees  "  all  damages  they  may 
sustain  by  the  suing  out  of  said  injunction,  if  the  same  is  dissolved, 

73.  Speyrer  v.  Miller,  108  La.  204,        (Ky.)    217.      See  Hopkin's  Admr.  v. 
32  So.  524,  61  L.  R.  A.  781.  Morgan,  7  T.  B.  Mon.  (Ky.)    1;  Bar- 

74.  Scott  v.  Fowler,  7  Ark.  299.  rett  v.  Bowers,  87  Me.   185,  32  Atl. 

75.  Lambert   v.    Haskell,    80    Cal.       871. 

611,  620,    22    Pac.    327;    Powers  v.  77.    Jameson     v.     Kelly,     1    Bibb. 

Crane,    67    Cal.    65;    People    v.    Ca-  (Ky.)    479. 

bannes,  20  Cal.  525.  78.  Holliday's  Ex'ers  v.  Myers,  11 

The    granting    of    tHe    injnnc-  W.  Va.  276. 

tion  is  a  sufficient  consideration  79.  Babcock  v.  Reeves  (Fla.  1907), 

for  the  bond.     Wanless  v.  West  Chi-  43  So.  21;  Barnes  v.  Brookman,  107 

cago  St.  R.  Co.,  77  111.  App.  120.  111.    317;     Underhill    v.    Spencer,    25 

76.  Johnson  v.  Vaughan,  9  B.  Mon.  Kan.  71. 

287 


§§  172b,  173      Injunction  Bond  and  Actions  on  it. 

then  this  obligation  to  remain  in  full  force  and  effect,"  though 
awkward,  does  not  avoid  the  bond.80 

§  172b.  Effect  of  errors  and  omissions  in  bond. — A  bond  is  not 
void  because  it  specifies  no  amount  in  which  the  signers  to  it  are 
bound.81  Where  by  a  clerical  inadvertence  at  the  time  of  signing 
a  bond  it  was  nof  filled  up  with  the  amount  fixed  as  a  penalty,  the 
law  implies  that  the  bond  was  given  for  the  sum  fixed  by  the  order, 
and  the  principal  and  sureties  will  be  bound  thereby  for  that 
amount.82  And  where  the  word  dollars  is  omitted  from  the  penalty 
of  a  bond  and  is  obviously  left  out  by  mistake,  the  bond  will  be 
treated  as  if  the  word  was  in  it.83  And  a  bond  voluntarily  given 
is  not  rendered  void  because  of  the  factl  that  it  was  signed  by  one 
surety  when  the  order  was  that  it  be  executed  by  "  sureties."  M 
Again,  if  a  bond  was  in  fact  executed  before  the  court  clerk  as  re- 
quired by  statute,  it  is  not  vitiated  by  an  erroneous  memorandum 
of  the  clerk  that  it  was  executed  in  the  presence  of  the  court  on  a 
certain  day,  and  it  appears  from  the  court  records  that  the  court 
did  not  sit  on  that  day.85  A  misrecital  in  the  condition  of  an  in- 
junction bond  as  to  the  amount  of  the  judgment  enjoined  by  an 
injunction  bill,  may  be  corrected  by  the  bill,  where  the  bond  con- 
tains a  plain  reference  to  it  upon  the  principle  that  that  is  certain 
which  can  be  made  certain.86 

§  173.  Execution  of  injunction  bond  by  applicant. — Under  the 
Louisiana  Code  of  Practice  the  defendant  to  an  injunction  is 
entitled  to  have  a  bond  executed  in  his  favor  and  signed  by  the 

80.  Washington  v.  Timberlake,  74  82.  Mason  v.  Fuller,  27  La.  Ann. 
Ala.  259.      But  an  action  cannot  be      68. 

maintained  on  a  bond  the  penalty  of  83.  Harman  v.    Howe,    27    Gratt. 

which  is  left  blank;  nor  can  the  de-  (Va.)  676. 

feet  be  remedied  by  parol  evidence  as  84.    Gyger    v.    Courtney,   59  Neb. 

to    what   sum    should    have   been    in-  555,  81  N.  W.  437. 

serted.     Copeland  v.  Cunningham,  63  85.  Harman    v.    Howe,    27    Gratt. 

Ala.  394.  (Va.)    676. 

81.  North  Carolina  Gold  A.  Co.  v.  86.  Williamson's  Admrs.  v.  Hall, 
North  Carolina  Ore  D.  Co.,  79  N.  C.  1  Ohio  St.  190. 

48. 

288 


Injunction  Bond  and  Actions  on  it.  §  174 

plaintiff  or  his  duly  authorized  agent.  An  attorney  at  law,  unless 
specially  authorized,  or  unless  his  client  is  absent,  has  no  authority 
to  sign  the  bond.87  Under  the  Pennsylvania  statute  providing  that 
"  no  injunction  shall  be  issued  until  the  party  applying  shall  have 
given  bond  with  sufficient  sureties,"  the  applicant  must  execute 
it,  and  therefore  it  was  held  that  the  State  could  not  have  an  in- 
junction, there  being  no  organ  of  the  government  authorized  to 
execute  the  injunction  bond  for  her.88  Under  the  Kansas  statute 
which  declares  that  no  injunction  shall  operate  "  until  the  party 
obtaining  the  same  shall  give  an  undertaking  executed  by  one  or 
more  sufficient  sureties,"  the  party  himself  need  not  sign  the  bond  ;89 
and  this  is  the  rule  also  in  Colorado.90  It  is  not  material  that  the 
name  of  the  surety  should  appear  in  the  body  of  the  bond.91  In 
an  action  on  an  injunction  bond,  where  a  verified  answer  denies 
execution  of  the  bond,  it  is  error  to  render  judgment  for  plaintiff 
without  proof  of  its  execution.'2 

§  174.  Enforcing  State  bond  in  Federal  courts. — The  power 
of  the  Circuit  Court  of  the  United  States  to  deal  with  injunction 
bonds  which  may  come  to  it  from  a  State  court  is  not,  governed 
by  the  laws  or  practice  of  the  State  in  which  it  sits,  but  by  the 
Federal  rules  of  practice,  and  when  those  are  silent  by  the  prac- 
tice of  the  High  Court  of  Chancery  in  England  prevailing  when 
those  rules  were  adopted,  so  far  as  the  same  may  be  reasonably 
applied.93  Even  if  the  Federal  Circuit  Court  has  the  power  to 
have  the  damages  caused  by  an  injunction  assessed  under  its  own 
direction,  a  question  which  does  not  seem  to  be  settled  in  the 

87.  Gauthier  v.  Gardenal,  44  La.  92.  Jones  v.  Ross,  48  Kan.  474,  29 
Ann.  884,  11  So.  463;  Louisiana  Pac.  680,  An  injunction  bond  must 
Bank  v.  Wilson,  19  La.  Ann.  3;  be  acknowledged  by  the  obligors 
Goodin  v.  Allen,  12  La.  Ann.  448.  therein,  or  must  be  proved  by  a  sub- 

88.  Commonwealth  v.  Franklin  scribing  witness  to  the  same  or  it 
Canal  Co.,  21  Pa.  St.  117,  130.  will   be    invalid,   and    the    injunction 

89  State  v.  Eggleston,  34  Kan.  issued  thereon  will  be  irregular. 
?14  Loveland  v.  Burnham  (1845),  1  Barb. 

90.  Smith    v.    Atkinson,    18    Colo.      Ui.  65. 

255    32  Pac    425.  93    R"sse11   v-    Farley,    105   U.    S. 

91.  Griffin  v.  Wallace,  66  Ind.  410.      433,  437,  26  L.  Ed.  1060. 

289 
19 


§175 


Injunction  Bond  and  Actions  on  it. 


affirmative,  there  is  no  doubt  that  in  most  eases  it  is  more  suitable 
and  convenient  to  leave  the  party  who  has  been  enjoined  to  his 
action  at  law  on  the  injunction  bond.91 

§  175.  Bond  essential  to  recovery  of  injunction  damages. — 
Where  a  party  in  good  faith  and  on  a  fair  representation  of  the 
facts  procures  a  writ  or  order  of  injunction  he  is  not  liable  in  an 
action  for  the  damages  which  the  injunction  has  caused  to  the 
person  enjoined,  unless  he  has  given  a  bond  or  other  security  for 
the  payment  of  such  damages.  In  other  words,  in  the  absence  of 
such  a  security  the  defendant  has  no  remedy  for  any  damages  he 
may  sustain  from  the  issuing  of  the  injunction  unless  the  conduct 
of  the  plaintiff  has  been  such  as  to  give  ground  for  an  action  for 
malicious  prosecution.95  So  in  a  recent  case  in  Massachusetts  it  is 
decided  that  no  bond  having  been  ordered  or  given,  the  court  cor- 
rectly ruled  that  the  defendants  were  not  entitled  to  an  assessment 


94.  Russell  v.  Farley,  105  U.  S. 
433,  446,  26  L.  Ed.  1060;  Merry- 
field  v.  Jones,  2  Curtis  C.  C.  306. 

95.  Palmer  v.  Foley,  71  N.  Y.  106, 
per  Folger,  J.:  "Such  is  the  indica- 
tion of  the  remarks  of  the  chancellor 
in  Cayuga  Bridge  Co.  v.  Magee,  2 
Paige,  116-122.  In  other  States  it 
has  been  intimated  or  expressly  held 
that  where  there  is  no  order  or  bond 
or  other  security  for  the  payment  of 
damages,  there  is  no  obligation  on 
the  part  of  the  plaintilf  to  pay  them. 
Sturgis  v.  Knapp,  33  Vt.  486,  522; 
Lexington,  etc.,  R.  Co.  v.  Applegate, 
8  Dana  (Ky.),  289.  This  is  upon  the 
rule  that  anyone  may  proceed  to  en- 
force a  legal  right  in  a  civil  action; 
and  that  though  he  did  it  mali- 
ciously, he  is  not  liable  therefor,  if 
there  be  probable  cause  or  ground 
for  it.  Warren  v.  Matthews,  6  Mod. 
73.  For,  in  a  civil  action  the  defend- 
ant has  his  costs,  and  the  plaintiff 
was    once    amerciable    pro   falso    da- 


more,  and  it  is  a  claim  of  right.  Sa- 
vil  v.  Roberts,  1  Salk.  14.  And  costs 
were  given  by  statute  in  place  of  the 
amerciament.  Where  a  party  in  good 
faith  and  on  a  fair  presentation  of 
the  facts  to  a  court,  or  to  a  judicial 
officer,  procures  a  writ  or  order  of 
injunction,  he  is  not  liable  in  an  ac- 
tion for  the  damages  which  the  in- 
junction has  caused  to  the  person  en- 
joined. Such  is  the  rule  as  to  any 
process,  or  order  in  the  nature  of 
process  thus  procured.  Daniels  v. 
Fielding,  16  M.  &  W.  200.  Where 
process  sued  out  by  a  party  is  after- 
wards set  aside  for  error,  the  party 
is  not  liable  in  an  action  for  dam- 
ages; where  it  has  been  set  aside  for 
irregularity,  or  bad  faith  in  obtain- 
ing it,  he  may  be.  Williams  v.  Smith, 
14  Com.  Bench  (N.  S.),  596;  108 
Eng.  Com.  L.  R.  594.  See,  also,  Mil- 
ler v.  Adams,  52  N.  Y.  409;  Carl  v. 
Ayers,  53  N.  Y.  14." 


290 


Injunction  Bond  and  Actions  on  it. 


§  176 


of  the  damages  sustained  by  them  by  reason  of  an  injunction  re- 
straining them  from  disposing  of  certain  patents  which  by  the  final 
decree  they  were  allowed  to  retain.96  And  the  same  rule  prevails 
in  the  Federal  courts.97  On  the  dissolution  of  an  injunction,  or 
reversal  by  the  Supreme  Court  of  the  order  granting  it,  no  dam- 
ages can  be  assessed  defendant  where  no  bond  therefor  has  been 
given  by  plaintiff.98 

§176.  Same  subject;  in  Minnesota,  Kentucky,  Pennsylvania. 

— In  Minnesota,  an  action  upon  the  bond  required  from  plaintiff 
upon  granting  him  an  injunction  is  the  only  remedy  of  a  defendant 
for  the  recovery  of  his  damages  caused  by  the  injunction  where 
plaintiff  was  not  entitled  to  it,  unless  it  was  sued  maliciously  and 
without  probable  cause.  The  action  on  the  bond  is  not  cumulative 
but  the  exclusive  remedy  of  the  defendant  for  his  damages.99     In 


96.  American  Circular  L.  Co.  v. 
Wilson    (Mass.   1908),  84  N.  E.   133. 

97.  Meyers  v.  Block,  120  U.  S.  206, 
211,  7  S.  Ct.  525,  where  it  was  held 
that  without  a  bond  the  defendant 
could  not  recover  damages  unless  he 
made  out  a  case  of  malicious  prosecu- 
tion. 

98.  St.  Louis  v.  St.  Louis  Gas 
Light  Co.,  82  Mo.  349.  Damages  for 
wrongfully  obtaining  a  temporary  in- 
junction cannot  be  recovered,  where 
malice  or  want  of  probable  cause  are 
not  alleged  or  proved.  The  remedy  is 
on  the  injunction  bond.  Campbell  v. 
Carroll,  35  Mo.  App.  640.  Where  an 
administrator  recovered  judgment  for 
a  debt  due  the  estate,  but  was  en- 
joined by  the  judgment  debtor  from 
collecting  the  same,  if  the  injunction 
should  be  dissolved,  and  the  admin- 
istrator permitted  to  collect  the  debt, 
it  should  be  done  by  a  suit  on  the  in- 
junction bond.  Fauber  v.  Gentry,  89 
Va.  312,  15  S.  E.  899. 

99.  Hayden  v.  Keith,  32  Minn. 
277,    per    Vanderburgh,    J.:       "The 


plaintiffs  contend  .that  when  the 
court,  pursuant  to  the  statute,  orders 
the  writ  to  issue,  the  right  to  the 
actual  damages  accrues  as  an  inci- 
dent to  the  allowance  and  issuance 
of  the  process,  whether  a  bond  is  filed 
or  not,  and  that  in  cuse  a  bond  with 
sureties  is  filed  as  required  by  the 
statute,  it  is  to  be  regarded  simply 
as  further  or  additional  security  for 
such  damages.  W  are  unable  to  ab- 
sent to  this.  The  bond  is  not  cumu 
lative,  but  the  only  security  of  the 
defendant  in  the  injunction  suit. 
Lawton  v.  Green,  64  N.  Y.  326.  Gen. 
St.  1878,  ch.  66,  §  203,  is  a  transcript 
of  section  222,  N.  Y.  Code,  which 
was  substituted  for  rule  31  of  the 
court  of  chancery  in  tbat  State,  from 
which  rule  7,  Minnesota  Territorial 
District  Court  (equity  side)  appears 
to  have  been  copied.  Rules  of  Prac- 
tice, 1  Minn.  461.  Prior  to  the  adop- 
tion of  that  rule  the  defendant  was 
remediless  for  any  damages  suffered 
by  reason  of  the  issuance  of  an  in- 
junction, unless  maliciously  caused  to 


291 


§l7Ga 


Injunction  Bond  and  Actions  on  it. 


Kentucky,  the  bond  is  equally  essential  to  the  recovery  of  the 
damages  caused  to  defendant  by  the  injunction.1  In  Pennsylvania, 
the  defendant's  only  remedy  for  damages  is  on  the  injunction 
bond ;  if  he  desires  to  recover  outside  of  the  bond  he  must  show 
malico  and  want  of  probable  cause.2 

§  I7(>a.  Action  on  bond  as  affected  by  malice;  want  of  prob- 
able cause. — In  an  early  case  in  Alabama  it  is  decided  that  an 
action  may  be  maintained  on  an  injunction  bond  without  a  previous 
action  on  the  case  to  ascertain  the  damages  occasioned  by  the  vexa- 
tious suing  out  of  the  writ.3  And  it  was  also  decided  in  this  case 
that  an  action  of  debt  on  an  injunction  bond  cannot  be  maintained 
to  recover  damages  occasioned  by  the  suing  out  of  the  writ,  unless 
the  injunction  was  sued  out  vexatiously.4  And  an  early  case  in 
North  Carolina  is  authority  for  the  doctrine  that  where  it  appears 
that  the  party  who  sued  out  the  injunction  really  and  bona  fide 
entertained  the  belief  that  he  had  just  grounds  for  his  suit,  the 
idea  of  malice  is  negatived,  and  the  action  upon  the  bond  cannot 
be  supported.5    The  rule  as  to  the  effect  of  bad  faith  in  respect  to 


be  issued.  The  sole  remedy  is.  there- 
fore, that  which  is  furnished  by  the 
statute  upon  the  bond.  The  party 
aggrieved  must  therefore  bring  his 
action  upon  it,  and  his  recovery  must 
be  limited  by  the  amount  specified  in 
the  bond.  Lawton  v.  Green,  supra; 
Cayuga  Bridge  Co.  v.  Magee,  2  Paige, 
116,   121." 

1.  Lexington,  etc.,  R.  Co.  v.  Apple- 
gate,  8  Dana.  Ky.  289,  310,  per  Rob- 
ertson, C.  J.:  "The  chancellor 
granted  the  injunction  without  re- 
quiring any  bond  or  other  security. 
Whether  this  was  proper  or  not  we 
need  not  now  determine.  But  in  this 
state  of  the  case,  if,  as  may  be  pre- 
sumed in  the  absence  of  proof  to  the 
contrary.,  the  appellees  filed  their  bill, 
obtained  the  injunction  and  prose- 
cuted the  suit  in  good  faith,  be- 
lieving that  the  railway  or  the  use 


made  of  it  by  the  company  was  a 
nuisance  operating  to  their  private 
injury,  it  is  our  opinion  that  they 
are  not,  according  to  any  adjudged 
case  or  established  principle  of  equity 
or  law,  responsible  for  damages.  As 
they  have  never  undertaken  to  pay 
any  damages  in  the  event  of  an  ulti- 
mate dissolution  of  their  injunction, 
it  seems  to  us  that  they  could  now  be 
made  liable  only  for  a  malicious  pros- 
ecution." 

2.  Hutchins  v.  Rogers,  22  W.  N. 
Cas.  79. 

3.  Garrett  v.  Logan,  19  Ala.  344. 

4.  Garrett  v.  Logan,  19  Ala.  344. 

5.  Falls  v.  McAfee,  24  N.  C.  236, 
holding  that  in  an  action  upon  a 
bond,  the  condition  of  which  is  to 
indemnify  the  plaintiffs  "  for  all  dam- 
ages they  might  sustain  by  reason  of 
the  wrongful  suing  out  of  an  injunc* 


292 


Injunction  Bond  and  Actions  on  it. 


§17' 


an  action  on  the  bond  is  said  to  be  well  stated  in  a  New  Jersey 
case.6  In  an  early  case  in  Alabama,  however,  it  is  decided  that 
suit  upon  an  injunction  bond  may  be  prosecuted  after  the  injunc- 
tion is  dissolved  for  any  violation  of  its  provisions  without  respect 
to  probable  cause  which  existed  for  suing  out  the  injunction.7 

§  177.  Action  for  damages  on  bond;  when  accrues. — Upon  a 
final  judgment  dissolving  an  injunction,  a  right  of  action  upon  the 
injunction  bond  immediately  follows,  unless  the  judgment  is 
superseded.8  And  a  right  of  action  for  damages  does  not  accrue  on 
an  undertaking  given  on  the  issue  of  a  temporary  injunction,  in  a 
suit  for  a  perpetual  injunction,  until  a  final  judgment  in  such  suit, 


tion  "  by  the  defendants  to  stop  the 
plaintiffs  from  working  a  certain 
gold  mine,  it  is  necessary  for  the 
plaintiffs  to  show  a  want  of  prob- 
able cause  for  the  former  suit,  and 
also,  in  a  legal  sense,  malice  in  bring- 
ing it. 

6.  "  That  the  injunction  was  dis- 
solved is  not  of  itself  evidence  that 
he  was  not  equitaoly  entitled  to  it, 
and  though  it  may  have  been  im- 
providently  granted  and  for  that 
cause  be  dissolved  before  answer,  that 
will  not,  if  the  case  is  fairly  pre- 
sented by  the  bill  and  verification, 
entitle  the  defendant  to  whom  it  is 
given  to  look  to  it  for  damages.  But 
if  the  application  be  actually  or  pre- 
sumably mala  fide,  as  for  example,  if 
the  bill  presents  grounds  for  relief  by 
injunction,  which  have  no  existence, 
or  distort  or  falsely  color  facts  or 
omit  facts  in  the  knowledge  of  the 
complainant,  or  of  which  he  might  or 
in  fairness  ougnt  to  have  informed 
himself,  and  which  would  have  had 
an  important  bearing  against  grant- 
ing the  injunction,  if  stated  in  the 
bill,  in  short,  if  the  application  be 
disingenuous,  mala  fide,  or  made  with- 
out due  regard  to  the  rights  of  the 


court  or  the  defendant  in  the  appli- 
cation, the  complainant  is  to  be  re* 
garded  as  not  having  been  equitably 
entitled  to  the  injunction.  A  com- 
plainant may  come  into  court  for  a 
discovery,  and  on  that  ground  pray 
an  injunction.  If  the  discovery  be 
made  and  the  result  be  adverse  to 
him,  he  may  nevertheless  have  been 
equitably  entitled  to  an  injunction. 
The  object  of  the  rule  is  to  secure 
bona  fides  in  the  application,  and  to 
provide  indemnity  to  the  party  en- 
joined, against  the  effects  of  an  in- 
junction unfairly  obtained."  Smith 
v.  Kuhl,  26  N.  J.  Eq.  97,  98.  See, 
also,  Coosa w  Min.  Co.  v.  Carolina 
Min.  Co.,  75  x'ed.  860,  wherein  the 
rule  is  said  to  be  well  stated  in  the 
above   words. 

7.  Cox.  v.  Taylor's  Admr.,  10  B. 
Mon.  (Ky.)  17,  holding  that  the  fact 
that  an  injunction  bond  has  been 
given  does  not  merge  any  cause  of 
action  given  by  the  common  law  for 
maliciously  suing  without  probable 
cause,  any  more  than  does  a  sheriff's 
official   bond. 

8.  Alexander  v.  Gish,  88  Ky.  13,  9 
S.  W.  801. 


293 


§177 


Injunction   Bond  and  Actions  on  it. 


though  the  temporary  injunction  has  been  dissolved,  on  motion. 
]n  such  a  case,  an  action  brought  before  final  judgment  in  the  in- 
junction suit  is  premature,  and  cannot  be  maintained.9  So,  until 
there  has  been  a  final  disposition  of  the  suit  in  which  the  injunction 
bond  was  executed,  an  action  cannot  be  maintained  upon  the  bond ; 
nor  does  it  alter  the  case  that  an  order  of  partial  dissolution  of  the 
injunction  has  been  made  and  affirmed  on  appeal,  if  the  case  has 
been  remanded  by  the  appellate  court  for  further  proceedings.10 
And  where  an  injunction,  obtained  by  plaintiff  at  law,  in  order  to 
preserve  property  in  litigation  until  the  result  of  the  suit  at  law,  is 


9.  California. — Clark  v.  Clayton, 
61  Cal.  634. 

Colorado. — Kilpatrick  v.  Haley,  6 
Colo.  App.  407,  41  Pac.  508. 

Iowa. — Bank  of  Monroe  v.  Gifford 
65  Iowa,  648,  22  K  W.  913. 

Kansas. — Jones  v.  Ross,  48  Kan. 
474,  29  Pac.  680;  Brown  v.  Galena 
Min.  &  S.  Co.,  32  Kan.  528,  4  Pac. 
1013. 

Kentucky. — City  of  Newport  v.  Mc- 
Arthur,  4  Ky.  Law  Rep.  632. 

Maryland. — Gray  v.  Veirs,  33  Md. 
159. 

Mississippi. — Goodbar  v.  Dunn,  61 
Miss.  624;  Penny  v.  Holberg,  53 
Miss.  567. 

Missouri. — Cohn  v.  Lehman,  93  Mo. 
574,  6  S.  W.  267. 

Nebraska. — Browne  v.  Edwards  & 
M.  L.  Co.,  44  Neb.  361,  62  N.  W.  1070, 

Ohio.— Columbus,  H.  V.  &  T.  R. 
Co.  v.  Burke,  54  Ohio  St.  98,  43  N. 
E.  282,  32  L.  R.  A.  329;  Welch  v. 
Benham,  6  Ohio  N.  P.  33,  9  Ohio  C 
P.  Dec.  70. 

Where  the  complainant  in  a 
bill  for  injunction  dies  and  the 
suit  is  revived  in  the  name  of  his 
administrator  and  on  final  hearing 
the  injunction  is  dissolved  and  a  de- 
cree rendered  against  the  adminis- 
trator  for  the  amount  of  the  judg- 


ment at  law  from  which  he  appeals 
and  a  stay  of  proceedings  is  ordered, 
the  defendant  in  the  bill  for  injunc- 
tion cannot  maintain  an  action  on  the 
injunction  bond  while  such  appeal  is 
pending  and  undetermined,  and,  in 
such  a  case  suit  is  brought  on  the 
bond,  during  the  pendency  of  the  ap- 
peal, the  defendant  may  plead  its  pen- 
dency in  abatement  or  in  bar  of  the 
action.     Fowler  v.  Scott,  11  Ark.  675. 

See,  also,  Gray  v.  Veirs, 

Sufficiency  of  complaint. — In 
an  action  on  a  bond  given  to  obtain 
a  temporary  injunction  against  the 
sale  of  property  levied  on  under  cer 
tain  judgments,  the  purpose  of  which 
is  to  recover  attorneys'  fees  and  other 
expenses  in  obtaining  a  dissolut  ion  of 
the  injunction,  a  complaint,  stating 
that  the  judgments  had  been  in  all 
things  affirmed,  and  that  the  claim 
was  then  due,  sufficiently  shows  the 
final  disposition  of  the  injunction  in 
some  manner  in  the  Supreme  Court, 
and  that  the  action,  therefore,  was 
not  prematurely  brought,  although  it 
is  not  alleged  that  the  time  for  re- 
hearing has  expired.  Midland  Ry. 
Co.  v.  Stevenson,  6  Ind.  App.  207, 
702,  33  N.  E.  254,  256. 

10.  Penny    v.    Holberg,    53    Miss. 
567. 


294 


Injunction  Bond  and  Actions  on  it.  §  177a 

dissolved,  no  reference  to  ascertain  the  damages,  or  action  therefor 
on  the  injunction  bond,  can  be  had  until  after  the  determination 
of  the  suit  at  law.11  And  in  an  early  case  in  New  York  it  was 
decided  that  a  report  of  a  referee  made  upon  the  question  of  dam- 
ages consequent  upon  the  dissolving  of  an  injunction  must  be 
confirmed  before  the  court  can  entertain  an  application  to  prosecute 
the  undertaking  given  upon  the  issuing  of  the  injunction.12  Where 
the  undertaking  is  that  the  obligors  shall  be  liable  for  the  damages 
sustained  by  the  party  enjoined,  "  if  it  be  finally  decided  the  in- 
junction ought  not  to  have  been  granted,"  the  final  decision  is  the 
final  judgment  in  the  original  action,  by  which  the  whole  merits 
thereof  are  finally  decided  and  disposed  of.13  But  the  voluntary 
dismissal  by  the  plaintiff  of  the  original  suit,  and  the  entry  of 
judgment  of  dismissal  against  him  is  the  final  judgment  in  that 
suit,  and  determines  the  liability  of  the  makers  of  the  injunction 
bond  as  effectually  as  would  a  judgment  upon  an  actual  trial  upon 
the  merits.14  And  where  the  relief  asked  for  in  the  bill  is  refused 
it  is  decided  that  a  dismissal  of  the  bill  is  not  necessarily  a  pre- 
requisite to  an  assessment  of  the  damages  on  the  bond.15  Nor  i3 
it  a  prerequisite  to  an  action  on  the  bond  that  there  should  be  a 
demand  on  the  principal  and  a  refusal  by  him  to  pay.16 

§  177a.  Same  subject;  evidence;  burden  of  proof. — In  an 
action  for  damages  on  an  injunction  bond,  it  is  error  to  render 
judgment  for  plaintiff  in  the  absence  of  evidence  that  the  injunc- 

11.  Thompson  v.  McNair,  64  N.  C.  A  party  has  a  right  to  insti- 
448;  Falls  v.  McAfee,  2  Ired.  236.  tute    an   independent    action    for 

12.  Griffing  v.  Slate,  5  How.  Prac.  damages  for  the  wrongful  suing  out 
(N.   Y.)    205.  of    an     injunction    where    there   haa 

13.  Jones  v.  Ross,  48  Kan.  474,  been  a  dismissal  of  the  suit.  Clev- 
29  Pac.  68;  Bemis  v.  Gannett,  8  Neb.  enger  v.  Cariker  (Tex.  Civ.  App., 
236;  Mills  v.  Hoag,  7  Paige  Ch.  18.  1908),    110    S.    W.    794. 

14.  Brown  v.  Galena  Mining  &  S.  15.  Winslow  v.  Mulchey  (Tenn. 
Co.,  32  Kan.  528,  4  Pac.   1013.     See.  Ch.),  35  S.   W.   762. 

also,    Tullock    v.    Mulvane,   61   Kan.  16.  Montana  Min.  Co.  v.  St.  Louis 

650,    60    Pac.    749.    holding   that   an  Min.    &   M.    Co.,    19    Mont.    313,    48> 

order  of  court  dismissing  the  proceed-  Pac.    305. 
ing  for  an  injunction  is  a  final  de- 
cision. 

295 


§§  178,  179      Injunction  Bond  and  Actions  on  it. 

tion  suit  has  been  disposed  of.17  In  such  an  action  the  plaintiff 
makes  out  a  prima  facie  case  by  establishing  the  dissolution  of  the 
temporary  injunction  and  the  dismissal  of  the  original  suit,  and 
the  burden  is  on  defendant  to  show  that  the  injunction  was  right- 
fully issued.18 

§  178.  Same  subject;  evidence  of  damage. — The  pendency  of 
an  action  of  ejectment  and  for  mesne  profits  in  another  court,  i9 
no  bar  to  an  action  by  the  same  plaintiff  against  the  same  defendant 
and  his  sureties  on  an  injunction  bond,  for  having  wrongfully 
enjoined  him  from  maintaining  an  action  for  possession  of  the 
same  premises.19  In  Mississippi,  the  insertion  in  the  decree  of 
dissolution  of  the  clause,  "  without  prejudice  to  the  defendant's 
right  to  sue  for  damages  on  the  injunction  bond,"  confers  upon 
him  no  new  right  of  action  on  the  injunction  bond,  but  merely 
furnishes  evidence  that  the  damages  were  not  adjudicated  by  the 
court  at  the  time  of  dissolution.20  On  dissolution  of  the  injunc- 
tion, his  action  on  the  bond  accrues,  with  or  without  such  a  pro- 
vision in  the  decree.21 


§  179.  Breach  of  condition  of  bond. — The  bond  or  undertaking 
to  be  given  on  the  granting  of  a  temporary  injunction,  should  con- 
form to  the  requirements  of  the  statute,  and  as  the  statutes, 
prescribing  and  regulating  such  bonds  vary  somewhat  in  the  several 
States,  the  breach  of  such  bonds  does  not  always  occur  in  the  same 
manner.22    Thus  where,  under  the  New  York  Code,  a  temporary 

17.  Towle  v.  Leacox,  59  Iowa,  42,  18.  Findlay   v.    Caraon,    97    Iowa, 

12    N.    W.     764,    holding    that    the  537,  66  N.  W.  759. 

judge's    minutes    upon    his    calendar  19.  Large  v.  Steer,  121  Pa.  St.  30, 

that  the  suit  has  been  dismissed  are  13  Atl.  490. 

not  proper  evidence  of  that  fact.  20.  Davis  v.  Hart,  66  Miss.  642,  6 

Must      show     injunction      dis-  So.  318. 

solved. — It  is  essential   to  a  recov-  21.  Penny    v.    Holberg,    53    Miss. 

ery  on  the  injunction  bond  to  show  567;  Goodbar  v.  Dunn,  61  Miss.  624. 

that  the     injunction     has     been  dis-  22.  Palmer   v.    Foley,     71     N.     Y. 

solved.     Harrison   v.   Park,    1    J.   J.  106;  Byam  v.  Cashman,  78  Cal.  525, 

Marsh    (Ky.),    171.  21    Pac.    113. 

296 


Injunction  Bond  and  Actions  on  it.  §  179 

injunction  was  granted,  and  an  undertaking  given  to  pay  damages 
in  case  the  court  "  finally  decides  that  the  plaintiff  was  not  entitled 
thereto,"  and  the  defendant  secures  a  dismissal  of  the  action  and 
a  dissolution  of  the  preliminary  injunction,  upon  some  matter 
arising  subsequent  to  the  commencement  of  the  action,  and  having 
no  relation  to  the  merits,  such  dismissal  is  not  a  determination  by 
the  court  that  the  plaintiff  was  not  entitled  to  the  injunction  at  the 
time  it  was  granted,  and  in  such  a  case  the  sureties  to  the  under- 
taking are  not  liable.23  But  in  Missouri,  where  a  bond,  given  on 
enjoining  the  sale  of  land  under  a  deed  of  trust,  was  conditioned  on 
payment  of  "  all  damages  that  may  be  occasioned  by  such  injunc- 
tion," and  of  "  all  sums  of  money,  damages  and  costs,  which  shall 
be  charged  against  it,  if  the  injunction  shall  be  dissolved,"  and  the 
injunction  was  dissolved  solely  on  account  of  a  subsequent  sale, 
under  a  prior  deed  of  trust  in  favor  of  a  third  person,  it  was  held 
by  the  Missouri  Supreme  Court,  in  an  action  on  the  injunction 
bond,  that  plaintiff  could  not  maintain  that  the  injunction  was 
properly  issued  in  the  first  place,  and  that  therefore  only  nominal 
damages  should  be  awarded  against  him,  for  the  very  terms  of  the 
statute  and  of  the  obligations  of  the  bond  required  the  payment  of 
damages,  should  the  injunction  be  dissolved;  and  the  voluntary 
dismissal  of  the  injunction  suit,  which  occurred  after  the  sale, 
should  be  regarded  as  a  judicial  determination  that  there  had  been 
a  breach  of  the  bond."    Again  a  party  who  procures  a  restraining 

See  §  172a  as  to  necessity  of  com-  Y.  46,  32  N.  E.  555.   Even  under  the 

pliance  with  statute.  obligation  of  the  bond  in   that  case, 

23.  Apollinaris  Co.,  Limited,  v.  the  court  remarked  that  the  sureties 
Venable,  136  N.  Y.  46,  32  N.  E.  555;  upon  such  an  undertaking  may  be 
Johnson  v.  Elwood,  82  N.  Y.  363;  held  in  some  cases,  although  there 
Palmer  v.  Foley,  71  N.  Y.  106.  had     been     no     formal     adjudication 

24.  Alliance  Trust  Co.  v.  Stewart,  against  the  right  of  a  temporary  in- 
115  Mo.  236,  21  S.  W.  793,  where  the  junction;  as  where  plaintiff,  ex  parte 
court  said:  "The  undertaking  here  and  without  the  consent  of  defendant, 
was  absolute  on  a  dissolution,  and  enters  an  order  vacating  the  injunc- 
not,  as  in  a  recent  New  York  case,  tion  and  discontinuing  the  action, 
conditioned  that  the  court  should  fin-  This,  it  was  said,  is  equivalent  to  the 
ally  decide  that  the  plaintiff  was  not  adjudication  that  the  plaintiff  was 
entitled  to  an  injunction.  Apollin-  not  entitled  to  the  injunction  when 
aris  Co.,  Limited,  v.  Venable,  136  N.  granted.     In  this  case  the  suit  was 

297 


§180 


Injunction  Bond  and  Actions  on  it. 


order  to  be  issued,  which  is  regular  on  its  face,  and  receives  the 
full  benefit  to  be  derived  from  it,  cannot  defend  against  an  action 
on  the  injunction  bond  for  damages  on  the  ground  that  the  order 
was  invalid  because  issued  by  the  judge  when  his  court  was  not  in 
vacation.25 

§  180.  Breach  of  bond  further  considered. — A  judgment 
entered  after  trial  dismissing  the  complaint  is  a  final  determina- 
tion that  the  plaintiff  had  no  cause  of  action  and  therefore  that 
he  was  not  entitled  to  an  injunction  within  the  provision  of  the 
New  York  Code.26  And  so  the  dismissal  of  an  action  for  want 
of  prosecution  is  a  final  decision  of  it  which  entitles  a  party 
enjoined  to  damages  where  an  undertaking  has  been  given  condi- 
tioned to  pay  the  party  enjoined  the  damages  sustained  by  reason 
of  an  injunction  "  if  the  court  shall  finally  decide  that  the  plaintiff 
was  not  entitled  thereto."  27  So  also  the  entry  of  an  ex  parte  order 
by  plaintiff  discontinuing  the  action  without  defendant's  consent 
on  payment  of  costs  by  plaintiff  is  equivalent  to  a  determination 
that  plaintiff  was  not  entitled  to  the  injunction  granted  therein.28 


dismissed  and  the  injunction  dis- 
solved by  the  voluntary  act  of  plain- 
tiff, and  against  the  objection  of  de- 
fendants. While  a  further  prosecu- 
tion of  the  suit  after  sale  would 
have  been  idle  and  useless,  still  a  sale 
was  a  contingency  that  might  have 
been  anticipated,  and  plaintiff  risked 
a  dissolution  therefor  when  he  asked 
for  and  obtained  an  injunction." 

25.  Rhodes-Burford  Furn.  Co.  v. 
Mattox,  13  Ind.  App.  221,  40  N.  E. 
545. 

26.  Grainger  v.  Smyth,  53  N.  Y. 
St.  Rep.  259.  And  see  Mutual,  etc.. 
Ins.  Co.  v.  Roberts,  4  Sandf.  Ch.  592. 
See  Code  Civ.  Proc,  §  620. 

27.  Manufacturers',  etc..  Bank  v. 
Dare  Co.,  67  Hun  (N.  Y.),  44.  See, 
also,  Weeks  v.  Southwick,  12  How. 
Pr.  (N.  Y.)  170;  Taaks  v.  Schmidt, 
19  How.  Pr.    (N.  Y.)   413;   Cunning- 


ham v.  White,  45  How.  Pr.  (N.  Y.) 
486;  Carpenter  v.  Wright,  4  Bosw. 
(N.   Y.)    655. 

28.  Pacific  Mail,  etc..  Co.  v.  Toel, 
85  N.  Y.  646;  aff'g  9  Daly,  301.  See, 
also.  Amberg  v.  Kramer,  29  N.  Y.  St. 
Rep.  958;  Brown  v.  Galena  Mining 
Co.,  32  Kan.  528.  A  preliminary  in- 
junction was  granted  on  an  undertak- 
ing to  pay  defendant's  damages  "  by 
reason  of  the  injunction,  if  the  court 
should  finally  decide  that  plaintiff 
was  not  entitled  thereto."  The  in- 
junction was  vacated  on  motion  of  de- 
fendants, and  the  action  subsequently 
dismissing  for  want  of  prosecution. 
Held,  that  this  constituted  a  breach 
of  the  undertaking  which  entitled  de- 
fendant to  a  reference  to  assess  hia 
damages.  Kane  v.  Casgrain,  69  Wis. 
430,  34  N.  W.  241.  Where  an  ex 
parte   preliminary   injunction   is   va- 


298 


Injunction  Bond  and  Actions  on  it. 


§180 


"But  a  discontinuance  of  an  action  upon  the  agreement  of  the 
parties  where  the  plaintiff  does  or  does  not  pay  the  defendant  costs, 
does  not  operate  as  a  final  decision  that  the  plaintiff  was  not  entitled 
to  the  injunction  order  when  it  was  granted.29  And  before  there 
can  be  a  recovery  of  damages  on  the  bond  it  must  be  determined  by 
judgment,  or  something  equivalent  thereto,  that  plaintiff  was  not 
entitled  to  the  injunction;  it  is  not  sufficient  that  this  appears  by 
the  facts  developed  on  the  trial,  but  it  must  become  a  part  of  the 
court's  decision.30     Where  an  injunction  bond  conformed  to  the 


cated  on  a  contested  motion,  without 
stating  why  it  was  vacated,  and  the 
complaint  is  dismissed  on  the  trial, 
the  conclusion  is  warranted  that  the 
court  finally  decided  that  plaintiff 
was  not  entitled  to  the  preliminary 
injunction,  and  an  order  appointing 
a  reference  to  ascertain  the  damages 
on  a  bond  given  under  Code  Civ.  Pro. 
N.  Y.  §  620,  providing  for  damages 
if  the  court  finds  plaintiff  was  not 
entitled  to  the  injunction,  will  not  be 
disturbed.  Jordan  v.  Donnelly,  11  N. 
Y.  Supp.  836.  Where  an  injunction 
prohibiting  the  collection  of  separate 
and  distinct  taxes  due  to  separate 
and  independent  corporations,  is  dis- 
solved as  to  part  of  such  taxes,  and 
sustained  as  to  the  rest,  there  is  a 
breach  of  the  obligation  of  the  in- 
junction bond.  Willits  v.  Slocumb, 
24  111.  App.  484. 

29.  Palmer  v.  Foley,  71  N.  Y.  106. 
In  Benedict  v.  Benedict,  76  N.  Y.  600, 
which  was  an  action  to  compel  the 
defendant  to  convey  to  the  plaintiff 
land  which  the  defendant  was  re- 
strained from  selling  or  incumbering 
during  the  pendency  of  the  action, 
the  final  judgment  rendered  was  that 
the  plaintiff  was  not  entitled  to  a 
conveyance  of  the  land,  but  that  he 
had  an  equitable  lien  thereon,  and  a 
sale  was  ordered  to  satisfy  the  lien 
and  costs.     The  defendant  moved  for 


a  reference  to  ascertain  his  damages 
sustained  by  reason  of  the  injunction, 
which  was  refused  upon  the  ground 
that  it  had  not  been  finally  decided 
that  the  plaintiff  was  not  entitled  to 
it.  In  that  case  the  action  haa  not 
been  determined  in  favor  of  the  de- 
fendant, and  it  may  well  have  been 
that  the  plaintiff  was  entitled  to  tho 
injunction  to  restrain  the  convey- 
ance or  incumbrance  of  land  on  which 
the  plaintiff  had  an  equitable  lien. 

30.  Benedict  v.  Benedict,  76  N.  Y. 
600.  Under  Code  Civ.  Pro.  N.  Y.  § 
620,  providing  that  the  applicant 
shall  file  an  undertaking  to  pay  the 
party  enjoined  such  damages  as  he 
may  sustain  by  the  injunction,  if  tho 
court  finally  decides  that  the  appli- 
cant is  not  entitled  thereto,  defend- 
ant is  not  entitled  to  a  reference  to 
ascertain  damages,  when,  after  the 
general  term  has  affirmed  the  order 
continuing  the  injunction,  oiaintiff 
has  discontinued  the  action,  since 
there  has  been  no  decision  adverse 
to  his  right  to  the  injunction.  Hall 
v.  Sexton,  3  N.  Y.  Supp.  549.  A 
chattel  mortgagor  -obtained  an  in- 
junction against  the  foreclosure  of 
the  mortgage  for  $1,000,  on  the 
ground  that  he  did  not  owe  anything 
on  the  mortgage,  and  gave  a  bond  to 
pay  such  damages  as  the  mortgagee 
mignt   sustain,  "if   the   court   should 


299 


§§  131, 182   Injunction  Bond  and  Actions  on  it. 

requirements  of  the  46th  Rule  in  Chancery  in  New  Jersey,  except 
that  the  words  "  such  damages  to  be  ascertained  in  such  manner  as 
the  chancellor  shall  direct,"  were  omitted,  it  was  held  that  the  only 
remedy  on  it  was  by  an  action  at  law,  the  court  of  chancery  having 
no  jurisdiction  over  it.31 

§  181.  Same  subject;  in  Alabama  and  Ohio. — Where  in  an 
action  on  a  bond,  it  appeared  that  it  was  given  to  obtain  an  injunc- 
tion restraining  plaintiff  from  prosecuting  certain  suits  against 
defendants,  and  was  conditioned  to  be  void  if  defendants  should 
pay  all  damages  sustained  by  the  suing  out  of  the  injunction,  in 
ease  it  was  dissolved  and  no  decree  dismissing  the  bill  for  the  in- 
junction, or  dissolving  the  injunction,  was  made,  and  the  suits 
were  not  finally  disposed  of  it  was  decided  that  plaintiff  failed  to 
show  a  breach  of  the  bond.32  The  dismissal  of  an  injunction  suit 
without  prejudice,  and  the  consequent  dissolution  of  the  injunction, 
do  not  constitute  a  breach  of  an  injunction  bond  conditioned  to  pay 
damages  "if  it  be  finally  decided  that  the  injunction  ought  not 
to  have  been  granted."  33 

§182.  Same  subject;  in  Kentucky,  California,  Iowa  and 
Maine. — A  final  decision  that  an  injunction  ought  not  to  have  been 
granted  is,  within  the  provisions  of  the  Kentucky  Code,  equivalent 
to  a  final  judgment  dissolving  the  injunction  and  gives  a  right  of 
action  on  the  bond.34  In  California,  where  a  bond  was  given  under 
Code  of  Procedure,  conditioned  that  plaintiff  should  pay  to  the 
enjoinee  such  damages  as  he  should  sustain  by  reason  of  the  in- 

tinally   decide   he  was  not  entitled"  31.  Easton  v.  N.  Y.,  etc.,  R.  Co., 

to   the    injunction.      Under    an    oral  26  N.  J.  Eq.  359. 

stipulation  that  $571  was  due  on  the  32.  May   v.   Walter,   85   Ala.   438, 

mortgage,  judgment  was  entered  for  6  So.  610. 

that  amount,  also  dissolving  the  in-  33.  Krug   v.    Bishop,   44   Ohio   St. 

junction.    Held,  that  an  action  on  the  221,  6  N.   E.  252. 

bond  could  not  be  sustained,  the  court  34.  Alexander  v.  Gish,  88  Ky.  13, 

not  having  decided  that  the  injunc-  9  S.  W.  801;  Pugh  v.  White,  78  Ky. 

tion  was  not  properly  granted.     Pre-  210;  Wood  v.  Laycock,  3  Met.   (Ky.) 

fontaine  v.  Richards,    47    Hun    (N.  193. 

Y.),  418. 

300 


Injunction  Bond  and  Actions  on  it.  §  183 

junction  if  the  court  should  finally  decide  he  was  not  entitled 
thereto,  it  was  held  that  the  condition  of  the  bond  was  broken  when 
the  injunction  was  dissolved  by  a  final  judgment  in  defendant's 
favor.35  Suit  cannot  be  brought  on  an  injunction  bond  until  a 
final  hearing,  although  the  temporary  injunction  has  been  dissolved 
because  improperly  granted  and  the  writ  wrongfully  issued 
Where,  after  a  hearing,  the  bill,  on  its  merits,  is  dismissed,  and 
the  dismissal  entered  on  the  docket,  an  action  may  be  sustained 
on  the  bond  given  to  procure  the  preliminary  injunction,  without 
a  formal  decree  being  signed  and  filed.37 

§  183    Venue;  action  pending  an  appeal.— An  action  for  dam- 
ages on  an  injunction  bond  may  be  brought  in  a  county  in  which 
one  of  several  defendants  resides,  though  it  be  in  a  county  other 
than  that  in  which  the  injunction  suit  was  tried.38    And  an  action 
may  be  maintained  in  a  State  court  upon  an  injunction  bond  given 
iu  an  action  pending  in  a  Federal  court.39    But  it  is  not  competent 
to  recover  before  one  tribunal,  upon  some  of  the  covenants  in  an 
injunction  bond,  and  then  sue  upon  other  covenants  before  another 
tribunal,  in  a  case  where  a  party  was  alike  liable  before  either 
tribunal  at  the  same  time  for  all  the  covenants  in  the  entire  instru- 
ment <°    In  California  it  has  been  decided  that  the  Supreme  Court 
will  not  grant  on  order  restraining  the  prosecution  of  an  action 
on  a  bond  given  on  the  issuing  of  a  restraining  order,  pending  m 
appeal  by  the  obligor  from  an  order  of  the  Superior  Court  vacating 
his  restraining  order,  and  denying  his  application  for  injunction. 

35.  Rice  v.  Cook,  92  Cat.  144,  28  niture  Co.  v.  Colby,  35  M  5W. 
Pac    219.     See  Cal.  Code,  §  529.  37.  Thurston   v.    Haskell,    81    Me. 

36    Monroe   Bank    v.     Gifford,    65  303,   17   Atl.  73. 
Iowa   648   22  N.  W.  913.    An  injunc-  38.  Wood    v.    Hollander,    84    Tex. 

low  a,  o*o,  m  Anta„A  ooi     iq   «    W    551.      Examine   Kim- 

tion  was  issued  on  notice  to  defend-  394,   19   b.    w.   oo 

♦       0ff0r    n    full    hearing    on    the  brough  v.  Walker   27  La.  Ann.  ooo. 
ants,    after    a    lull    neanug    ""  *  .         Mi      Co   v<  St.  Louis 

rVST—  a0y„  r;  30-.  B,ake„e7  v.  m,  „  A*. 

hoarin"    the    bill    was    dismissed    for  347.                                           „  .  ,    .„ 

want  oi  equity.     Held,  that  plaintiff  41.  Adams  v.  Andrew,  77  CM.  483, 

raslileqonythe  bonds.    Tobey  Fu,  20  Pac.  26.     An  injunction  bond  pro- 

301 


§184 


Injunction  Bond  and  Actions  on  it. 


§  184.  Parties  to  actions  on  injunction  bonds;  nominal  parties. 
— Where  the  party  enjoined  assigns  part  of  his  interest  in  the  prop- 
erty affected  by  the  injunction,  but  does  not  assign  the  injunction 
bond,  the  assignee  is  not  a  necessary  party  plaintiff  in  an  action 
on  the  bond.42  The  general  rule  is  that  other  than  the  persons 
enjoined  are  not  allowed  damages  in  actions  on  bonds,  though  they 
may  be  interested,  as,  for  instance,  prior  lienors,  in  the  subject 
matter  of  the  suit.43  And  where  one  who  is  not  named  as  obligee 
in  an  injunction  bond  brings  an  action  thereon  the  plaintiff  is  not 
even  entitled  to  nominal  damages  where  he  alleges  merely  a  breach 
of  the  bond  and  the  dissolution  of  the  injunction  though  the  bond 
is  conditioned  to  pay  the  damages  sustained  by  "  any  person  "  as 
a  result  of  the  suing  out  of  the  injunction  if  the  same  is  dissolved. 
He  should  also  allege  such  a  state  of  facts  as  to  show  that  he  was 
damaged  by  reason  of  the  issuance  of  the  injunction.44  But  an 
administrator  may  sue  upon  a  bond  drawn  to  the  obligee  "  his  heirs 
and  assigns  "  without  any  formal  words  therein  giving  him  such 
right.45  But  where  proceedings  conducted  by  one  party  for  his  own 
benefit  in  the  name  of  another  are  restrained  by  an  injunction 


vided  that,  if  a  restraining  order 
should  be  set  aside  at  the  final  hear- 
ing of  the  cause  in  which  it  was 
given,  the  defendants  would  indem- 
nify the  plaintiff  against  the  conse- 
quences of  such  order.  On  motion, 
the  restraining  order  was  dissolved, 
and  on  final  hearing  the  cause  dis- 
missed. The  cause  was  appealed  to 
the  Supreme  Court  of  the  United 
States  without  supersedeas,  and  was 
there  pending  when  suit  was  brought 
to  recover  under  the  bond.  Held, 
that  the  right  to  enforce  the  bond  was 
suspended  during  the  appeal;  and 
as  the  right  to  enforce  it  depended 
upon  the  final  determination  of  the 
suit  in  which  it  was  given,  it  was  im- 
material wnether  or  not  supersedeas 
was  obtained.  Cohn  v.  Lehman,  93 
Mo.  574,  6  S.  W.  267. 


42.  Smith  v.  Atkinson,  18  Colo. 
255.  32  Pac.  425,  per  Hoyt,  C.  J.: 
"  At  common  law  an  assignment  of  a 
part  of  an  entire  claim  does  not  give 
the  assignee  a  right  of  action  in  his 
own  name,  and  it  has  been  held  in  a 
number  of  cases  that  this  rule  has 
not  been  changed  by  the  reformed 
procedure.  The  present  suit  on  the 
undertaking  which  has  not  been  as- 
signed can  be  maintained  only  by  the 
obligees  named  therein.  Leese  v. 
Sherwood,  21  Cal.  151;  Cable  v.  St. 
Louis  Dock  Co.,  21  Mo.  133." 

43.  Holloway  v.  Holloway,  103  Mo. 
274,    285,   15  S.  W.  536. 

44.  Marengo  County  v.  Watkin 
(Ala.  1905),  42  So.  33. 

45.  Rynearson  v.  Fredenburg,  42 
Mich.  %12. 


302 


Injunction  Bond  and  Actions  on  it.  §  184a 

directed  to  the  nominal  party,  the  damages  and  expenses  incurred 
by  the  real  party  in  interest  will  be  presumed  in  law  to  have  been 
incurred  by  the  defendant  on  the  record,  and  are  recoverable  in  his 
name  for  the  benefit  of  the  real  party  in  interest.46  And  where  an 
injunction  was  obtained  against  a  defendant  who  was  the  agent  of 
another,  it  was  held  that  on  dismissal  of  the  injunction  bill  the 
defendant  could  bring  a  suit  for  damages  on  the  injunction  bond 
for  the  benefit  of  his  principal.47  In  the  case  of  an  injunction 
against  a  company  and  its  receiver  it  has  been  held  that  in  an 
action  upon  the  injunction  bond  the  receiver  is  the  real  party  in 
interest  and  that  the  joinder  of  the  company  as  co-plaintiff  is 
improper.48  A  trustee  of  an  express  trust,  who  has  been  restrained 
with  respect  to  matters  concerning  the  trust  estate  may  also  main- 
tain an  action  on  the  bond  given  in  the  injunction  suit  in  which 
he  is  named  as  the  obligee.49  Where  an  injunction  bond  is  made 
payable  to  the  State,  suits  thereon  may  be  prosecuted  from  time 
to  time  for  the  benefit  of  the  person  injured  by  the  breach  of  the 
condition  thereof,  until  damages  are  recovered  in  the  aggregate 
equal  to  the  penalty  of  the  bond.50  And  it  may  be  shown  aliunde 
that  the  bond  erroneously  recites  the  name  of  the  nominal  defend- 
ant in  the  suit  sought  to  be  restrained,  and  that  there  was  a  suit 
pending  in  which  the  person  so  recited  as  defendant  was  the  real 
party  in  interest,  though  others  were  the  nominal  defendants.51 

§  184a.  Parties  plaintiff  continued. — All  the  obligees  in  an 
action  of  debt  on  an  injunction  bond  should  join  in  the  suit  as 
plaintiffs,  upon  the  principle  that  the  demand  or  cause  of  action 

46.  Andrews  v.  Glenville  Woolen  51.  Person  v.  Thornton,  86  Ala. 
Co.,  50  N.  Y.  282.  308,  5  So.  470.     In  such  a  case  the 

47.  Richardson  v.  Allen,  74  Ga.  recital  of  the  suit  is  not  an  essential 
719;  Shaver  v.  McLendon,  26  Ga.  228.  part  of  the  contract.     Steed  v.  Hin- 

48.  Wason  v.  Frank,  7  Colo.  App.  son,  76  Ala.  298;  Meredith  v.  Rich- 
541.  44  Pac.  378.  ardson,  10  Ala.  828.    The  variance  in 

49.  Gyger  v.  Courtney,  59  Neb.  the  names  of  the  nominal  and  real 
555,  81  N.  W.  437.  defendant  may  be  explained.  Mitchell 

50.  State  v.  Hall,  40  W.  Va.  455,  v.  Ingram,  38  Ala.  395;  Dickson  v. 
21    S.    E.    760.  Bachelder,  21  Ala.  699. 

303 


§  185  Injunction  Bond  and  Actions  on  it. 

on  such  bond  is  joint  and  not  several.52  So  in  a  suit  upon  an  in- 
junction bond  for  the  payment  of  one  sum  to  two  more  parties, 
such  parties  should  join  as  plaintiffs,  though  the  loss  is  not  a  joint 
one.  And  if  they  do  not  it  is  decided  that  the  omission  may  be 
availed  of  by  demurrer  to  the  declaration  or  by  proof  of  non-joinder 
at  the  trial.53  And  where  the  undertaking  given  on  the  granting 
of  an  injunction  is  for  the  benefit  of  all  the  defendants  that  are 
enjoined,  all  of  them  who  obey  the  injunction  whether  served  there- 
with or  not,  are  entitled  to  have  their  damages,  caused  by  the 
injunction,  assessed.54  In  this  connection  it  has  also  been  decided 
that  an  injunction  bond  is  an  undertaking  to  which  the  obligees 
are  unwilling  parties,  and  is  not  a  contract  of  their  making.  By  it 
they  do  not  undertake  that  they  will  obey  the  writ.  Hence  the 
strict  rules  applicable  to  contracts  mutually  entered  into,  which 
prohibit  the  party  violating  his  contract,  from  maintaining  an 
action  on  the  same,  has  no  application  to  such  a  bond.55 

§  185.  Parties  plaintiff  concluded. — Where  an  injunction  bond, 
given  in  a  suit  to  restrain  the  funding  and  payment  of  county 
bonds,  is  conditioned  to  pay  damages  sustained  by  those  designated 
as  defendants  and  all  holders  of  the  bonds,  it  is  no  defense  to  an 
action  on  the  bond  that  the  plaintiffs,  who  were  bondholders,  were 
not  designated  defendants  in  the  injunction  suit,  for  to  exclude 
such  real  parties  in  interest  from  their  right  to  sue  on  the  injunc- 
tion bond,  merely  because  they  were  not  made  parties  defendant, 
would  not  only  be  in  disregard  of  the  express  stipulation  of  the 
bond,  but  might  enable  a  designing  party  to  do  great  injury  to  those 
really  interested  by  making  only  those  having  a  nominal  interest 
parties  defendant.56  But  public  officers  enjoined  as  such  and  in- 
demnified as  such  by  the  injunction  bond,  cannot  sue  thereon  for 
damages  as  private  persons,  there  being  no  privity  between  them 

52.  Montana  Min.  Co.  v.  St.  Louis       man  Co.,  39  Barb.   (N.  Y.)   16. 

Min.  &  M.  Co.,  19  Mont.  313,  48  Pac.  55.  Colcord    v.    Sylvester,    66    111. 

305.     See   Wallace  v.   Dilley,  7   Md.  540.     See    also.  Van  Hoozer  v.  Van 

237.  Hoozer,  18  Mo.  App.  19. 

53.  Wallis  v.  Dilley,  7  Md.  237.  56.  Alexander  v.  Gish,  88  Ky.  13, 

54.  Cumberland  Coal  Co.  v.  Hoff-  9  S.  W.  801. 

304 


Injunction  Bond  and  Actions  on  it.      §§  186,  187 

as  individuals  and  the  obligors  on  the  bond.57  So  where  a  suit  is 
brought  against  the  mayor  and  common  council  of  a  city,  and  an 
injunction  issued  thereon,  and  thereafter  the  suit  is  dismissed  by 
the  plaintiff,  an  action  to  recover  on  the  injunction  bond  may  be 
brought  in  the  name  of  the  city,  as  it  is  the  real  party  in  interest.5* 

§  186.  Requisites  of  bond  as  basis  of  action. — In  order  that 
an  action  may  be  maintained  on  the  bond  it  must  conform  sub- 
stantially to  the  requirements  of  the  writ  or  order  of  injunction.59 
Thus  when  a  temporary  restraining  order  is  made  upon  an  appli- 
cation for  a  temporary  injunction,  and  is  limited  to  the  pendency 
of  the  motion  for  the  temporary  injunction,  on  condition  that  a 
bond  be  filed  to  pay  all  damage  resulting  from  such  order,  a  bond 
given  in  consideration  of  a  writ  of  injunction  pending  the  hearing 
of  the  action  is  not  such  a  bond  as  was  contemplated  by  the  re- 
straining order  and  imposes  no  liability.60  An  injunction  ordered 
in  vacation  must  be  reduced  to  writing  and  signed  by  the  judge, 
in  order  to  be  effective  or  to  serve  as  a  foundation  for  an  action 
on  an  injunction  bond.61 

§  187.  Complaint  on  injunction  bond;  demurrer. — A  complaint 
in  an  action  on  the  bond  is  demurrable  if  it  fails  to  allege  that  the 
injunction  was  wrongful  or  without  sufficient  cause,  but  this  defect 
is  waived  by  defendant  if  he  answers  to  the  merits.62     A  petition 

57.  The  governor,  comptroller  and  viduals  and  the  obligors  in  said  un- 

treasurer  of  the  State  of  Nevada  can-  dertaking.     Kinkead    v.    Benton,    19 

not  bring  suit,  as  private  individuals,  Nev.  437,  14  Pac.  294. 

upon  a  statutory  undertaking  running  58.  Boise  City  v.  Randall,  8  Ida. 

to  them  as  officials,  and  given  in  con-  119,  66  Pac.  938. 

sideration  of  the  issuance  of  an   in-  59.  Byam  v.  Cashman,  78  Cal.  525, 

juncion   in   a    suit   to   restrain   them  21   Pac.    113.     Compare   Blankenship 

from    exercising    the    authority    con  v.  Ely,  98  Va.  359,  36  S.  E.  484. 

ferred  upon  them  by  the  Act  of  Feb-  60.  Byam  v.  Cashman,  78  Cal.  525, 

ruary  24.  1881    (Laws  Nev.  1881.  ch.  21  Pac.  113. 

42),    which    directs   the    construction  61.  Kiser  v.  Lovett,  106  Ind.  325, 

of  an  asylum  for  the  insane,  because  6  N.  E.  816. 

said  suit  having  been  brought  against  62.  Olds  v.  Cary,   13  Or.  362,   10 

them  in  their  official  capacity,  there  Pac.  786. 
is  no  privity  between  them  as  indi- 

305 
20 


§  187     Injunction  Bond  and  Actions  on  it. 

in  an  action  on  an  injunction  bond,  alleging  the  wrongful  issue  of 
the  writ  and  its  dissolution,  and  that  plaintiff  was  compelled  to 
employ  an  attorney  and  incur  expenses,  but  which  does  not  show 
on  what  ground  the  injunction  was  issued,  on  what  ground  it  was 
dissolved,  that  plaintiff  was  deprived  of  any  right  by  being  en- 
joined, or  that  there  was  any  occasion  for  his  employing  a  lawyer 
and  incurring  expenses,  is  bad  on  demurrer.63  But  in  an  action 
on  an  injunction  bond  a  petition  which  alleges  facts  from  which  it 
appears  that  the  injunction  was  wrongfully  sued  out,  is  sufficient 
without  a  specific  allegation  of  that  fact.64  And  in  Indiana,  in  an 
action  on  an  undertaking  to  pay  all  damages  and  costs  accruing  by 
reason  of  an  injunction,  if  such  injunction  should  not  be  sustained, 
the  sufficiency  of  the  complaint  cannot  be  questioned  by  a  demurrer 
to  allegations  showing  how  plaintiff  was  damaged,  as  the  cause  of 
action  accrued  on  the  dissolution  of  the  injunction.60  Where,  how- 
ever, a  bond  is  conditioned  to  pay  such  damages  as  shall  be  awarded 
a  declaration  in  an  action  on  the  bond  in  which  it  does  not  appear 
that  damages  have  in  any  way  been  awarded  is  not  sufficient.66 
When,  in  an  action  on  an  injunction  bond  to  stay  execution,  the 
plaintiff  sets  forth  the  undertaking  in  the  bond,  and  proceeds  to 
allege  that  the  injunction  was  wholly  dissolved,  and  the  defendants 
had  failed  to  satisfy  any  part  of  the  execution,  and  that  it  is  still 

63.  Hibbs  v.  Western  Land  Co.,  81  sufficiency  of  the  petition  in  that  re- 
Iowa,  285.  46  N.  W.  1119.  In  a  suit  spect;  that  the  defendant's  denial  of 
for  the  cancellation  of  a  note,  a  pre-  that  allegation,  among  others,  and 
liminary  injunction  was  granted  re-  the  dissolution  of  the  injunction 
straining  defendant  in  the  suit  from  presumably  on  that  ground,  at  least 
negotiating  the  note,  but  it  was  af-  in  part,  precluded  defendant  in  the 
terwards  dissolved  pendente  lite  upon  suit  from  claiming  that  he  was  in- 
answer  and  affidavits  denying  the  al-  jured  by  the  injunction;  and  that  the 
legations  and  the  petition.  Held,  in  action  must  consequently  fail.  Bank 
an  action  on  the  injunction  bond,  of  Monroe  v.  Gifford,  70  Iowa.  580, 
that  it  must  be   presumed  that  the  31   N.  W.  881. 

petition  in  the  injunction  suit  alleged  64.  Williams     v.     Ballinger,     125 

that  the  defendant  therein   intended  Iowa,  410,  101  N.  W.  139. 

to  negotiate  the  note,  as  that  was  a  65.  Boos  v.   Morgan,  5  Ind.  App. 

necessary  allegation  to  entitle  plain-  218.  31  N.  E.  39. 

tiff  therein  to  an  injunction,  and  as  66.  Ashby   v.    Chambers,    3    Dana 

defendant   therein,    upon    motion   to  (Kj.),  437. 
dissolve,   made   no   point  of   the   in- 

306 


Injunction  Bond  and  Actions  on  it.      §§  188,  1814 

unpaid,  this  is  a  sufficient  averment  of  the  breach  of  covenant  as 
to  payment.67 

§  188.  Same  subject. — The  bond  may  be  made  a  part  of  the 
complaint  by  setting  it  forth  at  length  or  by  annexing  a  copy  of 
it  as  an  exhibit  and  referring  to  it  as  forming  part  of  the  com- 
plaint,68 or  it  may  be  declared  on  according  to  its  legal  effect.69  An 
in  junction  bond  will  not  be  taken  from  the  files  and  delivered  to 
the  obligees  to  bring  an  action  thereon  at  law,  without  the  consent 
of  the  obligors,  but  a  certified  copy  should  be  provided ;  the  clerk 
to  produce  the  original  in  evidence  whenever  properly  required.'0 
If  the  bond  is  not  free  from  ambiguity  the  pleader  must  put  his 
construction  upon  it  by  proper  averments.71  All  that  is  effected 
by  setting  forth  the  bond  at  length  is  to  allege  its  existence  and 
character;  and  matters  of  substance  which  are  preliminary  or  col- 
lateral to  it  cannot  be  supplied  by  its  recital.72  In  an  action  on 
injunction  bond,  the  bond  is  the  foundation  of  the  action,  and  the 
complaint  need  not  set  out  the  record  in  the  injunction  suit,  as  an 
exhibit.73 

§  189.  Allegations  of  special  damage. — In  a  suit  on  an  injunc- 
tion bond,  the  complaint  must  allege  special  damages  or  they 
cannot  be  proven.74  But  in  Nevada  it  has  been  held  that  a  general 
allegation  of  damages  is  sufficient  in  an  action  on  an  injunction 
bond,  in  the  absence  of  a  special  demurrer.73  Where  no  damages 
have  been  awarded  by  the  decree  dissolving  the  injunction,  the 
declaration  on  the  bond  must  specify  the  particular  injuries  sus- 
tained with  such  clearness  that  they  may  be  understood  by  the 

67.  Riggan  v.  Crain,  86  Ky.  249,       26  NT.  J.   Eq.  360. 

6  S.  W.  561.  71.  Durkee  v.   Cota,   74  Cal.   315, 

68.  Lambert    v.    Haskell,    80    Cal.        16  Pac.  5. 

611,  22  Pac.  327.  72.  Los   Angeles    v.     Signoret,    50 

69.  Stoddard     v.     Treadwell,     26       Cal.  298. 

Cal.  303;  Murdock  v.  Brooks,  38  Cal.  73.  Merrifield  v.  Weston,   68  Ind. 

603;    Joseph    v.   Holt.    37    Cal.    253;  70. 

Hallock  v.  Jaudin,  34  Cal.  175;  Wills  74.  Parker  v.  Bond.  5  Mont.  1. 

v.  Kempt.  17  Cal.  98.  75.  Rosendorf  v.  Mandel,   18  Ncv. 

70.  Easton  v.  N.  Y„  etc.,  R.  Co.,  129.   1  Pac.  672. 

307 


S§  189a,  189b      Injunction  Bond  and  Actions  on  it. 

defendants.7*  In  a  suit  on  an  injunction  bond,  plaintiff  should  bo 
limited  in  his  pleadings  to  allegations  of  damage  resulting  ex- 
clusively from  the  injunction.77 

§  189a.  Effect  of  plea  or  answer. — A  plea  of  non  est  factum  in 
an  action  on  an  injunction  bond,  casts  the  burden  of  proof  on  the 
plaintiff.78  But  the  fact  that  the  court  orders  an  injunction  to  be 
issued  has  been  held  to  be  conclusive  evidence  that  the  court  ap- 
proved the  bond,  and  in  a  suit  on  the  bond,  an  answer  denying  the 
approval  thereof  by  the  court  is  bad  when  the  fact  that  the  court 
ordered  its  issuance  is  shown  by  the  record.79 

§  189b.  Defenses;  generally. — In  an  action  on  an  injunction 
bond  matters  which  go  to  the  merits  of  the  injunction  suit,  cannot 
be  considered  as  they  will  be  presumed  to  have  been  adjudicated 
upon.80  So  in  an  action  on  an  injunction  bond  an  answer  setting 
up  matter  which  would  have  been  merely  a  defense  to  an  action  for 
an  injunction  is  insufficient.81  And  in  an  action  on  an 
injunction  bond,  given  to  restrain  the  further  prosecution 
of  a  suit  at  law  the  defendants  are  estopped  from  denying 
that  there  was  such  a  suit  pending  as  that  described  in 
the  bond.82  It  is  also  no  defense  to  show  that  the  suit  in  which 
the  writ  of  injunction  was  issued  was  not  brought  against  the 
proper  party.83  The  fact  that  the  principal  in  an  undertaking 
given  in  an  injunction  suit  was  sued  without  making  the  sureties 
parties  is  also  immaterial.84  And  the  fact  that  an  injunction  bond 
fails  to  state  the  name  of  the  court  in  which  the  action  is  brought 
does  not  render  it  void.85    Nor  is  it  material  that  the  name  of  the 

76.  State   v.    Purcell,    31    W.    Va.  81.  Sipe  v.  Halliday.  62  Ind.  4. 
44    5  S.  E.  301.  82.  Person    v.    Thornton,    86    Ala. 

77.  Wood    v.    Hollander,    84    Tex.       308,   5  So.  470. 

394,  19  S.  W.  551.  83.  Boise  City  v.  Randall,  8  Tda. 

78.  Robards    v.     Wolfe,     1    Dana       119.  66  Pac.  938. 

(Ky).   155-  ®4-  ^rawf°rd   v-   Pearson,    116   N. 

79.  Griffin  v.  Wallace,  66  Ind.  410.  C.   718,  21   S.  E.   561. 

80.  Sipe  v.   Halliday,    62   Ind.   4;  85.  Winship    v.     Clendenning,    24 
Nansemond  Timber  Co.  v.  Rountree,  Ind.  439. 

122  N.  C.  45,  29  S.  E.  61. 

308 


Injunction  Bond  and  Actions  on  it.      §§  189c,  189d 

surety  should  appear  in  the  body  of  the  bond.80  And  the  fact  that 
an  injunction  was  violated  in  part  does  not  prevent  a  recovery  on 
the  bond  to  the  extent  it  was  observed.87  Where  several  parties 
were  interested  in  an  injunction  action,  but  only  one  was  made  a 
defendant  and  he  employed  an  attorney,  through  whose  efforts  the 
injunction  was  dissolved,  in  an  action  on  the  injunction  undertak- 
ing the  obligors  cannot  question  the  authority  of  the  attorney  or 
the  value  of  his  services  for  the  reason  that  he  did  not  represent 
all  the  parties  who  were  interested  in  the  result  of  the  injunction 
action.88  But  where  it  is  the  practice  to  execute  the  injunction  bond 
before  the  issuance  of  the  injunction,  the  obligors  when  sued  on  the 
bond  may  show  that  no  injunction  ever  issued  and  this  is  held  to 
be  true  though  the  bond  recites  "  that  they  had  prayed  for  and 
obtained  an  injunction."  89  And  in  an  action  on  an  injunction 
bond,  the  court  is  warranted  in  directing  the  jury  that  there  can 
be  no  recovery  for  loss  on  sales  while  the  injunction  was  in  force, 
where  it  was  habitually  violated  and  no  sales  were  in  fact  pre- 
vented thereby.90 

§  189c.  Defenses;  want  of  jurisdiction. — When  a  plaintiff  files 
a  complaint  and  bond,  and  procures  an  injunction  to  issue  from  a 
court  of  general  jurisdiction,  he  is,  when  sued  upon  the  bond, 
estopped  to  say  that  the  court  granting  the  injunction  was  without 
jurisdiction.  This  rule  is  founded  upon  the  theory  that  it  does 
not  lie  in  the  mouth  of  one  who  has  affirmed  the  jurisdiction  of  the 
court  in  a  particular  matter  to  accomplish  a  purpose,  to  afterwards 
deny  such  jurisdiction  to  escape  a  penalty.91 

§  189d.  Presumptions. — In  the  absence  of  evidence  to  the  con- 

86.  Griffin  v.  Wallace,  66  Ind.  410.  422,  28  N.  E.  857,  15  L.  R.  A.  273. 

87.  Wadsworth  v.  O'Donnell,  7  Ky.  See,  also,  Boise  City  v.  Randall,  8 
Law   Rep.    837.  Ma.  119    66  Pac.  938;  Hanna  v.  Mc- 

88.  Nimocks  v.  Welles,  42  Kan.  39,  Kenzie,  5  B.  Mon.  (Ky.)  314;  Cum- 
21  Pac.  787.  berland   Coal    &    I.    Co.    v.    Hoffman 

89.  Adams  v.  Olive,  57  Ala.  250.  Steam  Coal  Co..  39  Barb.  (N.  Y.)  16; 

90.  Steel  v.  Oordon,  14  Wash.  Loomis  v.  Brown,  16  Barb.  (N.  Y.) 
521,  45  Pac.  151.  325. 

91.  Robertson  v.   Smith,   129  Ind. 

309 


§  189d  Injunction  Bond  and  Actions  on  it. 

trary  it  will  be  presumed  that  the  delivery  of  a  bond  was  uncondi- 
tional and  it  is  for  the  defendant  to  plead  and  prove  the  contrary.** 
And  where  an  injunction  bond  on  which  judgment  has  been  ren- 
dered, has  been  lost  it  will  be  presumed  to  have  been  taken  accord- 
ing to  law  and  with  the  conditions  recited  in  the  judgment.93 

92.  Gyger    v.    Courtney,    59    Neb.  93.  Hicks    v.    Haywood,    4    Heiak. 

555,  81  N.  W.  437.  (Tenn.)    598. 


310 


Damages. 


CHAPTER  VI. 

Damages. 

Section  190.  Only  actual  damages  recoverable  on  bond. 

191.  Only  damages  caused  by  injunction. 
191a.  Same  subject— Remote  damages. 
191b.  Nominal  damages. 

191c.  Amount  recoverable  on  bond  limited  by  penalty  of. 

192.  Enjoinee's  duty  to  avert  damages. 

193.  Damages  to  stockholders. 

194.  Wages  and  current  expenses  as  damages. 

195.  Depreciation  of   value  as   damages. 

196.  Interest  when  allowed  as  damages. 

197.  Rents   as   damages— Injunction   against  asserting  ownership. 

198.  Loss  of  profits  as  damages. 

199.  Loss   of    profits    sometimes   allowed. 

200.  Loss  of  time  and  anxiety— Damnum  absque  injuria. 

201.  Exemplary  damages  not  recoverable. 

202.  Damages  accruing  after  final   decree. 

203.  Counsel  fees  on  dissolution  of  injunction. 

204.  Counsel  fees— Recovery  of  continued. 

205.  Counsel   fees  where  injunction  only  relief  sought. 

206.  Counsel  fees  where  injunction  ancillary  to  principal  relief. 

207.  Counsel   fees  incurred  generally  in  case. 

208.  Counsel  fees— Where  not  paid. 

209    Counsel  fees— Assignment  to  attorney  of  claim  for. 

210.  Jurisdictions  where  counsel   fees   not  recoverable. 
210a.  Counsel  fees— Where  federal  bond  sued  in  State  court. 
210b.  Where  injunction  expenses  blended  with  those  of  suit. 

211.  Costs  of  reference  as  damages. 
211a.  Assessment  of   damages— Generally. 

212.  Assessing  damages-ln  Kentucky,  Alabama,  Iowa,  Mississippi, 

Missouri. 

213.  In  Maine   and   Minnesota. 

214.  Assessment  of  damages  in  Illinois-Suggestion  when  required. 

215.  Continued  in  Illinois. 

216.  In  New  York  and  New  Hampshire. 

217.  in  Louisiana. 

218.  Motion    to    assess    damages-^Joinder    of    movanta-Apportion- 

ment. 

219.  Federal  practice  as  to  determining  damages. 

220.  English  injuiry  as  to  damages. 

311 


§190 


Damages. 


Section  221.  Assessing  damages  on  partial  dissolution  of  injunction. 

222.  Reference  to  ascertain   damages. 

223.  Same  subject. 

224.  Reference   in   Wisconsin. 

225.  Review   and   correction  of  referee's   report. 

226.  Reference  in   case   of   appeal. 
226a.  Pleadings. 

226b.  Evidence  and   burden  of   proof. 
226c.  W  nen  prescription  begins  to  run. 

Section  190.  Only  actual  damages  recoverable  on  bond An 

injunction  bond  as  a  general  rule  covers  only  actual  damages. 
Thus  where  defendant's  right  to  control  the  flow  of  a  stream,  the 
use  of  which  was  enjoined,  had  no  appreciable  rental  value,  and 
therefore  he  sustained  no  actual  damage,  it  was  held  he  was  not 
entitled  to  even  nominal  damages  in  an  assessment  thereof  on  the 
bond.1    And  where  defendant  alleged  in  his  answer  that  he  did  not 


1.  Foster  v.  Stafford  Nat.  Bank, 
58  Vt.  658,  5  Atl.  890;  Uhrig  v.  St. 
Louis,  47  Mo.  528.  In  an  action  to 
recover  for  a  wrongful  injunction, 
only  actual  damages  will  be  imposed 
on  a  party  who  honestly  believed  him- 
self entitled  to  the  writ.  Carondelet 
Canal  &  Nav.  Co.  v.  Touche,  38  La. 
Ann.  388.  In  Riggs  v.  Bell,  42  La. 
Ann.  666,  per  Bermudez,  C.  J..  "  An 
examination  of  the  record  satisfies  us 
that  Mrs.  Bell  acted  in  good  faith, 
under  the  advice  of  able  counsel,  in 
the  vindication  of  what  she  conceived 
to  be  her  rights,  which  were  kindred 
to  similar  ones  in  a  somewhat  analo- 
gous case  which  may  have  been  con- 
strued as  authorizing  her  complaint 
and  the  relief  judicially  sought. 
Blanc  v.  Murray,  36  La.  Ann.  162. 
But  the  injunction  having  been  dis- 
solved she  remains  under  the  obliga- 
tion of  repairing  the  actual  damages 
which  it  has  undoubtedly  occa- 
sioned." Attorneys'  fees  and  rent 
were  the  items  of  damages  allowed, 
amounting  to  $325,  and  their  allow- 


ance was  confirmed  on  appeal.  Where 
the  evidence  in  an  action  on  an  in- 
junction bond  showed  that  the  in- 
junction was  obtained  to  restrain  the 
enforcement  of  a  judgment  against 
land  held  in  the  name  of  the  judg- 
ment debtor  as  "  trustee,"  without 
designating  any  beneficiary,  and  that 
pending  the  injunction  suit  the  plain- 
tiff therein,  the  alleged  beneficiary, 
agreed  that  such  judgment  should  be 
a  lien  upon  the  property,  and  soon 
afterwards  the  injunction  was  dis- 
solved, it  was  held,  that,  in  the  ab- 
sence of  proof  that  the  judgment 
creditor  had  suffered  material  dam- 
age by  the  injunction,  a  judgment  for 
defendant  would  not  be  reversed,  al- 
though the  plaintiff  might  be  entitled 
to  nominal  damages.  Boardman  v. 
Willard,  73  Iowa,  20,  34  N.  W.  487. 
And  generally  an  omission  to  assess 
nominal  damages  where  there  is  a 
mere  tehenical  right  to  recover,  is  no 
ground  for  a  new  trial.  Norman  y. 
Winch,  65  Iowa,  263,  21  N.  W.  598; 
Heudspeth   v.     Allen,    26    Ind.    167; 


312 


Damages. 


§191 


intend  to  do  the  act  enjoined,  the  allegation  was  a  concession  that 
he  was  not  injured  by  the  injunction,  and  therefore,  though  the 
injunction  was  dissolved,  he  was  not  entitled  to  the  expense  in- 
curred in  procuring  the  dissolution.2 

§  191.  Only  damages  caused  by  injunction. — Only  such  dam- 
ages can  be  recovered  on  the  injunction  bond  as  were  caused  by  the 
injunction  itself,3  and  they  must  be  such  as  fall  within  the  condi- 
tions of  the  bond.4  And  the  damages  recoverable  in  an  action  on 
an  injunction  bond  conditioned  to  pay  all  damages  not  exceeding 
a  certain  amount,  which  the  defendant  might  sustain  by  reason 
of  the  injunction  are  limited  to  those  damages  which  result  from 
the  operation  of  the  injunction.5  And  in  Louisiana  it  is  said  that 
the  sureties  cannot  be  held  liable  for  the  amount  of  the  judgment 
enjoined  unless  it  be  proved  that  the  judgment  was  lost  in  conse- 
quence of  the  injunction.6  So  the  party  enjoined  cannot  recover 
damages  on  the  injunction  bond  which  were  caused  by  the  misman- 
agement of  a  receiver  and  for  which  he  could  be  held  responsible.7 


Watson  v.  Van  Meter,  43  Iowa,  76. 
In  an  action  on  an  injunction  bond 
to  recover  damages  for  loss  of  plain- 
tiff's crops  by  reason  of  his  being  re- 
strained from  using  the  water  in  a 
certain  ditch,  the  evidence  showed 
that  there  was  a  scarcity  of  water, 
and  that  it  coutd  not  have  reached 
plaintiff's  land.  There  was  a  verdict 
for  the  defendant,  and  the  court, 
with  his  consent,  entered  judgment 
for  nominal  damages  for  plaintiff. 
Held,  that  the  verdict  would  not  be 
disturbed.  Mack  v.  Jackson,  9  Colo. 
636,  13  Pac.  542. 

2.  Bank  of  Monroe  v.  Gifford,  70 
Iowa,  580,  31  N.  W.  881. 

3.  Burgen  v.  Sharer,  14  B.  Mon. 
(Ky.)  497;  Elms  v.  Wright  Blodgett 

Co.,  106  La.   19,  30  So.  315. 

4.  Curry  v.  American  Freehold 
Land  M.  Co.,  124  Ala.  614,  27  So. 
454. 


5.  Burden   v.    Sharer,    14   B.   Mon. 
(Ky.)    407. 

6.  Hefner    v.    Hesse.    29    La.    Ann. 
149. 

7.  At  an  execution  sale  the  prop- 
erty Avas  purchased  by  the  debtor's 
wife.  One  of  his  creditors  attacked 
the  bona  fides  of  her  purchase,  and 
obtained  an  injunction  and  a  re- 
ceiver. The  bona  fides  of  the  pur 
chase  was  afterwards  established,  and 
the  receiver  discharged.  The  wife 
then  sued  the  creditor  on  the  injunc- 
tion bond.  In  this  case  it  was  held 
that  she  could  maintain  her  action, 
but  that  she  could  not  recover  for  a 
loss  for  which  the  receiver  might 
have  been  made  accountable.  Lehman 
v.  McQuown,  31  Fed.  138.  In  Hotch 
kiss  v.  Piatt.  8  Hun,  46,  in  proceed- 
ings to  ascertain  the  damages  result- 
ing from  the  granting  of  an  injunc 
tion,  damages  directly  caused  by  the 


313 


§  191a  Damages. 

And  in  proceedings  to  determine  the  damages  caused  by  an  injunc- 
tion the  damages  directly  caused  by  the  act  of  divesting  the  defend 
ant  of  his  property  and  putting  it  in  the  hands  of  a  receiver  may 
be  allowed  but  not  those  sustained  in  consequence  of  the  negligence 
or  want  of  fidelity  of  the  receiver.8  And  where  in  an  injunction 
suit  a  receiver  was  appointed  who  gave  a  bond  and  took  and  sold 
the  property  in  litigation,  it  was  held  that  damages  could  not  be 
recovered  on  the  injunction  bond  for  the  acts  and  omissions  of  the 
receiver.9  And  where  an  injunction  is  ended  by  the  appointment 
of  a  receiver,  damages  arising  from  the  act  of  the  receiver  in  selling 
at  a  sacrifice  the  property,  the  sale  of  which  was  enjoined,  are  not 
recoverable  in  an  action  on  the  injunction  bond.10 

§  191a.  Same  subject;  remote  damages. — Damages  so  remote 
that  from  their  character  they  could  not.  have  been  considered  by 
the  parties  as  a  result  of  a  breach  of  the  contract  when  it  was  made 
cannot  bo  recovered.11  So  it  is  a  general  rule  that  the  damages 
recoverable  are  those  which  are  tihe  direct  proximate  and  natural 
consequence  of  the  suing  out  of  the  injunction,  and  that  those 
which  are  remote  and  speculative  are  not  recoverable.12     So  in  a 

act  of  divesting  the  enjoined  party  of  opening  a  road,  it  was  held  he  could 

his    property    and    putting   it   in    the  not  recover  from  the  sureties  on  the 

hands   of   a   receiver  were   allowable.  injunction    bond     the     damages    sus- 

but  not  such  as  flowed  from  the  re  tained  by  him  from  the  action  inde- 

ceiver's  bad  management,  other  secur-  pendent    of    the    injunction,    nor    the 

ity  being  given  therefor;  also  that  an  damages  for  the  injury  sustained  by 

allowance  by  the  court  to  the  receiver  the  public  in  consequence  of  the  road 

for    services    was     not    allowable    as  remaining  unopened, 

damages  if  no  greater  than  the  party  11.  Parks    v.    O'Connor,    70    Tex. 

enjoined  would  have  had  to  pay  an-  377,  8  S.  W.   104. 

other  for  the  same  services  if  no  re-  12.  Arkansas. — McDaniel  v.   Crab- 

ceiver  had  been  appointed.  tree.  21  Ark.  431. 

8.  Hotchkiss  v.  Piatt,  8  Hun  (N.  California. — Lambert  v.  Haskell, 
y.),  46.  80  Cal.  611,  22  Pac.  327. 

9.  Wood  v.  Hollander,  84  Tex.  394,  Illinois.— Landis  v.  Wolf,  206  111. 
19  S.  W.  551.  392,  399,  69  N.  E.  103. 

10.  Kerngood       v.       Gusdorf,       5  Louisiana. — Elms  v.   Wright  Blod- 
Mackey   (D.  C),  161.      In  Burgen  v.  gett  Co.,  106  La.  19,  30  So.  315. 
Sharer.  14  B.  Mon.  (Ky.)  497,  where  Missouri. — McKenzie  v.  Matthews, 
a   road  overseer   was   enjoined  from  59  Mo.  99. 

314 


Damages.  §  191b 

case  in  New  York  it  is  said:     "  The  damages  to  which  a  party 
who  has  been  injured  by  the  granting  of  an  injunction,  is  entitled, 
are  only  such  as  resulted  directly  from  the  injunction.     Kemote 
damages  are  excluded  by  the  very  terms  of  the  undertaking  which 
are  that  the  plaintiff  will  pay  to  the  defendant  such  damages  a3 
he  may  sustain  by  reason  of  the  said  injunction,  and  also  by  the 
general  rules  of  the  law  governing  the  assessment  of  damages  in 
analagous  cases."  u    So  it  is  said  in  a  recent  case  in  Illinois  that 
damages  recoverable  for  the  wrongful  suing  out  of  a  writ  of  in- 
junction must  be  such  as  naturally  and  approximately  result  there- 
from and  remote  or  speculative  damages  cannot  be  taken  into  con- 
sideration.14    So  the  damages  recoverable  in  an  action  on  a  bond 
conditioned  for  the  payment  of  such  damages  as  might  be  sustained 
by  reason  of  the  injunction  are  those  which  are  the  proximate 
result  of  the  injunction.15    And  there  can  be  no  recovery  of  remote 
conjectural  profits  of  which  a  person  claims  to  have  been  deprived 
where  they  are  the  collateral  and  consequential  results  of  the  in- 
junction.16    And  conjectural  profits  which  might  have  been  real- 
ized from  the  use  of  land  have  been  held  too  remote  and  uncertain 
to  be  recovered  as  damages  on  account  of  being  deprived  of  the  use 
of  the  land.17    So  damages  for  lost  time  at  court  and  in  procuring 
witnesses  are  not  allowable.18 

§  191b.  Nominal  damages. — The  dissolution  of  an  injunction 
is  said  to  be  a  technical  breach  of  the  bond  for  which  nominal 
damages  may  be  recovered.19    So  it  is  decided  that  on  the  dissolu- 

Xew  York.— Hotchkiss  v.  Piatt  8  Stone    (Tenn.   Ch.   1900),   57    S.   W. 

Hun    (N.  Y.),  46.  374. 

Pennsylvania,— Sensenig  v.   Parry.  16.  Elms  v.  Wright-Blodgett  Co., 

113  Pa    St.  115,  5  Atl.  11.  106  La.  19,  30  So.  315. 

13.  Hothcklss  v.  Piatt,  8  Hun  (N.  17.  Epenbaugh  v.  Gooch,  15  Ky. 
Y.),  46,  48.     Per  Gilbert,  J.  Law  Rep.   576. 

14.  Chicago  Title  &  Trust  Co.  v.  18.  Densch  v.  Scott,  58  111.  App. 
City  of  Chicago,  209  111.  172.  70  N.  E.  33. 

572,  aff'g  110  111.  App.  395.    Per  Wil-  19.  Stone  v.   Cason,    1   Oreg.    100. 

kir'  j  See,   also,   Mix   v.   Singleton.    86   111. 

15.  Jones  v.  Allen,  85  Fed.  523,  29  194;  Robmer  v.  Chadwick,  7  Utah, 
C.  C.  A.  318;  Smith  Penn  Oil  Co.  v.  385,  26  Pac.  1116. 

315 


§  191c  Dam  auks. 

tion  of  an  injunction  an  action  at  law  may  be  maintained  on  the 
bond  and  nominal  damag(s  recovered  without  proof  of  any  actual 
damage.20  But  it  is  also  decided  that  a  cause  will  not  be  reversed 
for  the  purpose  simply  of  allowing  the  appellant  to  recover  mere 
nominal  damages.21  As  to  these  nominal  damages  the  courts  are, 
however,  disposed  in  some  jurisdictions  to  adopt  the  maxim  of  de 
minimus  non  curat  lex}2  So  in  a  case  in  California  in  which  it 
was  contended  that  at  least  nominal  damages  were  recoverable  the 
court  declared  tihat  it  thought  itself  justified  in  invoking  this 
maxim.23  And  in  a  case  in  Vermont  it  is  declared  that  the  damages 
provided  for  in  an  action  on  an  injunction  bond  are  real  and  that 
mere  nominal  damages  are  not  recoverable.24 

§  191c.  Amount  recoverable  on  bond  limited  by  penalty  of. — 
In  an  action  on  an  injunction  bond  there  cannot  be  a  recovery  of  a 
greater  sum  than  the  penalty  of  the  bond.25  So  when  a  bond  is 
required  and  given  the  court  of  chancery  cannot  award  greater 
damages  than  the  penalty  stated  therein.26  So  in  a  case  in  Vermont 
it  is  decided  that  on  the  dissolution  of  an  injunction  granted  on 
condition  that  a  bond  of  a  specified  amount  be  filed,  if  the  bond  is 
filed,  with  no  other  order  as  to  payment  of  damages,  the  defendant 
can  recover  no  greater  amount  than  the  penalty  of  the  bond  though 
it  was  also  declared  that  if  the  injunction  had  issued,  conditioned 
for  the  payment  of  all  the  damages  sustained,  the  case  might  merit 

20.  Roaser  v.  Timberlake,  78  Ala.  25.  Kentucky. — Hughes  v.  Wick- 
162.     See   Mix  v.    Singleton,   86   111.       liffe,  11  B.  Mon.  202. 

194.  Maryland. — Levy  v.  Taylor,  24  Md. 

21.  Boardman  v.  Willard,  73  Iowa,       282. 

20,  34  N.  W.  487.  New  York.— Hovey  v.  Rubber  Tip 

22.  Bustamente  v.  Stewart.  55  Cal.  Pencil  Co.,  38  N.  Y.  Super.  Ct.  428. 
115;  Willson  v.  McEvoy.  25  Cal.  174;  North  Carolina. — ftansemond  Tim- 
Jennings  v.  Loring,  5  Ind.  250;  Mc-  ber  Co.  v.  Rountree.  122  N.  C.  45  29 
Conihe  v.  New  York,  etc.,  R.  Co.,  20  S.  E.  61. 

N.  Y.  495.  South   Carolina.— Hill   v.    Thomas, 

23.  Bustamente     v.     Stewart,     55       19  S.  C.  230. 

Cal.   115.  Tennessee. — Rhea  v.  McCorkle,   11 

24.  Foster  v.  Stafford  Nat.  Bank,      Heisk.  415. 

08  Vt.  658,  5  Atl.  890.  26.  Sturgis  v.  Knaft,  33  Vt.  486. 


316 


Damages.  §  192 

a  different  conclusion."  And  in  a  case  in  the  Federal  courts  it  is 
decided  that  the  damages  recoverable  in  an  action  on  an  injunction 
bond  are  limited  to  the  amount  of  the  bond  unless  the  injunction 
was  maliciously  obtained.28  So  where  the  injunction  prayed  by 
the  bill  was  to  prevent  defendants  from  selling,  disposing  of,  or 
intermeddling  with  certain  goods,  and  to  obtain  a  decree  applying 
the  same  to  the  payment  of  the  debt  of  the  complainant  and  others, 
the  amount  properly  recoverable  in  an  action  on  the  injunction 
bond  was  held  to  be  the  loss  in  value  of  the  goods  during  the  opera- 
tion of  the  injunction,  not  exceeding  the  penalty  of  the  bond  with 
interest  thereon  from  the  time  of  the  institution  of  the  suit.29  And 
in  a  case  in  New  York  it  is  held  that  the  allowance  for  disburse- 
ments and  referee  fees  over  and  above  the  sum  specified  in  the 
undertaking  is  error.30  And  an  injunction  bond  is  only  binding 
with  reference  to  the  judgment  it  recites  and  is  a  security  for  the 
payment  of  no  other  judgment  than  the  recited  one.31  If,  however, 
no  limit  for  which  the  makers  of  the  bond  shall  be  liable  is  estab- 
lished either  by  the  order  of  the  court  granting  the  injunction  or 
by  the  bond  the  liability  of  the  obligors  is  held  to  be  co-extensive 
with  the  damages  the  defendants  may  sustain  by  reason  of  the 
writ.32  Again,  where  the  penalty  of  a  bond  is  fixed  at  a  certain 
sum,  the  liability  of  an  obligor  thereto  will  not  be  limited  to  a 
less  sum  by  the  insertion  of  such  less  sum  between  his  signature 
and  seal.33 

§  192.  Enjoinee's  duty  to  avert  damages. — A  defendant  who 
has  been  wrongfully  enjoined  may  recover  as  injunction  damages 
whatever  loss  he  has  sustained  by  reason  of  his  obeying  the  in- 
junction as  he  reasonably  understood  it,  and  so  long  as  he  is  not 
in  legal  fault  in  understanding  and  obeying  it  as  he  did.34    But  a 


27.  Glover   v.    McGaffey.     56    Vt.  32.  Cummins    v.    Miller    &   Co.,   7 
294.  Ky.  Law  Rep.  670. 

28.  Terry  v.  Robbins,  122  Fed.  725.  33.  Dangel  v.  Levy,  1  Ida.  722. 

29.  Levy  v.  Taylor,  24  Md.  283-  34.  Webb  v.  Laird,  62  Vt.  448    20 

30.  Lawton  v.  Green,  64  N.  Y.  326.  Atl.  599,   22  Am.   St.   Rep.   121.   per 

31.  Morgan  v.  Blackeston,  7  Harr.  Rowell,  J.:     "The  giving  way  of  the 
&.  J.   (Md.)   61.  dam  being    due    to    the  defendant'* 

317 


§  102  Damages. 

party  being  enjoined  from  doing  one  thing  cannot  refrain  from 
another  and  quite  distinguishable  thing,  and  recover  damages,  as 
caused  by  the  injunction,  which  in  fact  resulted  from  his  own 
stupidity.35  The  party  enjoined  may  obey  the  injunction  according 
to  its  spirit  as  well  as  its  letter,  and  therefore  if  the  party  obtain- 
ing an  injunction  would  be  safe  from  the  possible  consequences 
of  a  construction  by  the  other  party  that,  would  enlarge  the  scope 
of  it  beyond  what  he  intended  it  should  be,  he  must  see  that  it  is 
made  too  plain  to  reasonably  admit  of  such  construction.36  The 
party  enjoined  should  do  nothing  to  increase  his  opponent's 
damages,  and  should  do  all  he  reasonably  can  to  diminish  them ;" 
but  for  this  purpose  he  is  not  bound  to  incur  any  danger  or  assume 
any  unusual  risks  to  himself  or  his  property,  and  is  not  to  be  held 
rigidly  and  absolutely  to  the  adoption  of  that  course  which  would 
save  the  plaintiff  from  loss.  While  it  is  the  duty  of  a  defendant, 
in  an  action  wherein  a  temporary  injunction  has  been  granted,  to 
do  nothing  to  enhance,  and  to  do  all  that  he  reasonably  can  to 
diminish  the  damages  tiherefrom,  he  is  not  bound  to  incur  any 
hazard,  and  is  not  responsible  if,  adopting  such  course  as  experi- 
enced and  competent  men  would  deem  prudent  and  proper  under 
the  circumstances,  another  course  might  have  been  taken,  equally 
safe  and  proper,  which  would  have  reduced  the  damages.38  The 
Missouri  doctrine  is  that  the  party  enjoined  should  not  stand  by 
and  allow  damages  to  be  incurred  which  by  reasonable  exertion 

obeying  the   injunction  as  he  had  a  stand  it.    A  party  cannot  shield  him- 

right  to  understand  it,  he  can  recover  self  from  the  legitimate  consequences 

for  rebuilding  it  and  for  the  neces-  of  a  rightful  obedience  to  the  behests 

sary  loss  of  the  use  of  his  mill  for  the  01   the   injunction   procured   by  him; 

time  required  to  rebuild."  nor   can   he  be  heard   to   claim   that 

35.  Kulp  v.    Bowen,  122  Pa.  St.  78,  the  other  party  should  not  yield  such 
15  Atl.  717.  obedience,     nor    claim    damages    for 

36.  Webb  v.  Laird,  59  Vt.  116,  118,  himself   for   such   obedience." 

7  Atl.  465,  per  Ross,  J.:     "The  ora-  37.  Parsons   v.    Sutton.    66   N.   Y. 

tor  also  should  have  known,   for  he  98;    Eten  v.  Luyster,  60  N.  Y.  252; 

was  fully  cognizant  of  the  situation  Dillon   v.   Anderson,   43   N.   Y.   232; 

of  the  dam,  that  it  would  be  endan-  Hamilton  v.  McPherson,  28  N.  Y.  72. 

gered  by  a  compliance  with  the  in-  38.  Roberts    v.    White,    73    N.    Y. 

junction  in  the  manner  in  which  the  375. 
defendant  had    the  right    to  under- 

318 


Damages. 


193 


on  his  part  could  be  averted,  and  if  he  does  he  will  not  be  allowed 
to  recover  them  in  an  action  on  the  bond.39 

§  193.  Damages  to  stockholders. — Under  the  rule  that  no 
damages  can  be  recovered  in  an  action  on  an  injunction  bond,  which 
are  not  the  actual,  natural  and  proximate  result  of  the  injunction, 
a  corporation  which  is  wrongfully  enjoined  cannot  recover,  under 
the  bond  given  to  it,  damages  incidentally  and  indirectly  caused 
by  the  injunction  to  its  individual  stockholders;  for  a  corporation 
being  a  legal  entity  which  is  wholly  distinct  and  separate  from  its 
stockholders,  an  indemnity  bond  given  to  it  has  no  implied  cove- 
nant for  their  protection.40 


39.  Alliance  Trust  Co.  v.  Stewart, 
115  Mo.  236  21  S.  W.  793;  Douglass 
v.  Stephens,  18  Mo.  366;  Chicago,  S. 
F.  &  C.  R.  Co.  v.  McGrew,  104  Mo. 
282,  291,  15  S.  W.  931;  Waters  v. 
Brown,   44   Mo.   303. 

40.  Eaton  v.  Larimer  &  Weld  Res- 
ervoir Company,  3  Col.  366,  33  Pac. 
2/8,  per  Bissell,  C.  J.:  "During  the 
progress  of  the  trial  proof  was  offered 
which  tended  to  show  that  the  stock- 
holders of  the  reservoir  company  had 
suffered  large  loss  in  the  destruction 
and  diminution  of  their  crops,  for  the 
want  of  water  which  they  were  un- 
able to  obtain  because  of  the  issuance 
of  the  writ  against  the  reservoir  com- 
pany. While  the  objection  to  the 
testimony  was  very  general,  yet  the 
court  was  directly  requested  to  in- 
struct the  jury  that  the  reservoir 
company  could  '  recover  no  damages 
on  account  of  any  that  may  have  been 
sustained  by  the  individual  share- 
holders.' This  the  court  refused  to 
do,  but  it  generally  instructed  the 
jury  that  they  were  entitled  to  take 
into  consideration  any  damages  sus- 
tained by  the  plaintiff  and  done  to 
the  crops,  because  of  the  loss  and 
non-receipt  of  the  water.     It  is  true 


that  the  instruction  given,  in  general 
terms,  charged  the  jury  that  it  was 
the  company  which  was  entitled  to 
recover  the  damages  resulting  from 
the  loss  of  crops,  but  that  does  not 
of  itself  remedy  the  difficulty,  or  re- 
move the  error  which  the  court  com- 
mitted in  refusing  to  give  the  charge 
which  the  defendants  requested.  With- 
out  attempting,  by  the  processes  of 
inclusion  and  exclusion,  to  give  an 
absolutely  accurate  definition  of  a 
corporation,  it  may  be  termed  an  ar- 
tificial person,  created  by  law,  with 
many  of  the  powers  and  responsibil- 
ities of  the  natural  person,  and  with 
many  which  are  peculiar  to  its  own 
artificial  existence.  For  the  purpose 
of  enforcing  its  obligations,  determin- 
ing its  responsibilities,  subjecting  it 
to  compulsory  performance  of  its 
contracts,  or  requiring  it  to  respond 
in  damages  for  torts  which  have  been 
committed  in  its  name  and  by  its  au- 
thority, the  law  regards  it  as  an  en- 
tity, wholly  distinct  and  separate 
from  its  directory  or  its  stockholder*. 
The  converse  is  equally  true.  Or- 
dinarily it,  and  it  only,  may  bring 
suit  to  enforce  agreements  to  which 
it  is  a  party,  and  ask  judgment  for 


319 


§§  104,  195 


Damages. 


S  194.  Wages  and  current  expenses  as  damages. — Where  a 
person's  business  is  suspended,  or  his  factory  closed  by  an  injunc- 
tion, the  salaries  and  wages  he  is  obliged  to  pay,  under  subsisting 
contracts,  and  the  expense  of  caring  for  his  idle  property,  may  be 
damages  caused  by  the  injunction.'41  And  where  defendant  was 
delayed  in  the  completion  of  his  building,  by  be  ing  restrained  from 
tearing  down  an  old  wall,  the  increased  cost  of  building  was 
allowed  as  damages.42 

§  195.  Depreciation  of  value  as  damages. — Depreciation  in  the 
value  of  property,  from  the  loss  of  a  market,  or  from  a  change 
in  market  value  during  the  operation  of  an  injunction,  is  a  very 
common  damage  caused  to  the  party  enjoined.  Thus,  where  the 
plaintiff,  claiming  certain  shares  of  stock,  obtained,  on  giving  an 


damages  which  it  has  sustained  hy 
reason  of  the  wrongs  done  to  it  and 
its  property.  These  well-settled  prin- 
ciples demonstrate  the  inaccuracy  of 
rule  laid  down  by  the  court  by 
which  the  jury  should  measure  the 
damages  resulting  from  the  operation 
of  the  writ.  The  su.t  was  brought 
by  the  complainants  against  the  res- 
ervoir company  alone.  The  writ  was 
against  it.  The  bond  to  support  it 
was  a  promise  to  respond  to  the  cor- 
poration for  whatever  damages  that 
artificial  being  should  sustain.  By 
no  process  of  reasoning  can  the  bond 
be  made  to  include  a  covenant  to 
protect  the  stockholders  of  the  cor- 
poration from  any  loss  which  should 
fall  on  them  because  of  the  failure 
of  the  company  to  discharge  its  con- 
tracts, unless  it  should  be  determined 
in  some  leg  il  way  that  the  reservoir 
company  was  responsible  to  the  con- 
tr  c.ing  parties  lor  the  failure  to  de- 
liver water,  under  some  valid  under- 
taking into  which  it  had  entered. 
No  such  question  is  presented.  The 
record  raises  only  the  naked  inquiry 


whether,  when  a  corporation  sues  on 
a  bond  running  to  it,  it  can  include 
in  its  claim  for  damages  those  which 
have  incidentally  fallen  on  its  stock- 
holders, without  proof  that  they  have 
been  compelled  to  respond  for  a 
breach  of  some  valid  contract,  into 
which  they  had  antecedently  entered, 
and  which  they  were  prevented  from 
performing  by  tha  bond  in  suit  or  a 
showing  that  they  have  rightfully 
liquidated  the  claims  asserted  against 
it.  The  statement  of  the  query  fur- 
nishes its  own  refutation.  The  cor- 
poration waa  not  fanning  the  lands 
on  which  the  crops  were  sown  that 
sullered  from  the  failure  to  deliver 
the  water,  lliey  were  the  property 
of  third  persons,  who  were  not  parties 
to  the  action  in  which  the  writ  is- 
sued, and  who  were  not  nominated  in 
the  bond  on  whicn  the  suit  is  based." 

41.  Wood  v.  State,  GO  Md.  01.  5 
Atl.  476,  where  the  salary  of  a  gen- 
eral manager  and  the  pay  of  a  watch- 
man were  allowed  as  d  mages. 

42.  Roberts  v.  White,  73  N.  Y. 
375. 


320 


Damages.  §  196 

undertaking  to  abide  by  any  order  the  court  should  make  as  to 
damages,  an  interlocutory  injunction,  restraining  the  shareholders 
from  parting  with  their  shares,  and  at  the  trial  his  action  was  dis- 
missed, it  was  held  that  the  damages  payable  by  plaintiff  was  not 
the  difference  between  the  price  of  the  shares  when  the  action  was 
dismissed  and  the  highest  price  at  which  they  had  been  quoted, 
but  the  difference  between  the  price  when  the  injunction  was 
granted  and  the  price  when  a  summons  asking  for  a  sale  was 
issued.43  And  when  delay  in  the  sale  of  personal  property  is 
caused  by  an  injunction,  and  depreciation  in  the  salable  value  of 
the  property  is  an  incident  of  the  delay,  the  depreciation  is  the 
measure  of  damages  caused  by  the  injunction.44  The  principal 
and  the  security  on  an  injunction  bond,  and  on  a  forthcoming 
bond,  by  means  of  which  the  principal  arrested  the  sale,  and  ob- 
tained the  possession,  and  enjoyed  the  use  of  working  animals 
seized  by  a  party,  will  be  held  in  solido  for  the  depreciation  in 
value  of  said  animals  as  the  result  of  bad  treatment  while  in  the 
possession  of  the  principal  on  such  bonds.45 

§  19  G.  Interest  when  allowed  as  damages. — When  the  effect  of 
an  injunction  is  to  deprive  the  party  enjoined  of  the  use  of  money 

43.  Mansell  v.  British  Linen  Bank  depreciation  of  one-half  the  cost  price 
(1892),  3  Ch.  D.   159.  of  the  beds,  interest  on  what  he  had 

44.  Meysenburg  v.  Schlieper,  48  paid  for  them,  and  his  advertising 
Mo.  42G.  Plaintiff  obtained  an  in-  expenses.  The  other  defendant,  who 
junction  against  defendants,  restrain-  was  the  manufacturer,  had  a  lot  of 
ing  them  from  making  or  selling  a  beds  on  hand  when  suit  was  insti- 
foid-bed,  on  the  ground  that  it  in-  tuted,  and  had  prepared  to  manu- 
fringed  plaintiff's  patent.  On  final  facture  them  on  an  extensive  scale, 
hearing  the  bill  was  dismissed  for  Held,  that  he  should  be  allowed  as 
want  of  equity,  and  defendants  filed  damages  the  difference  between  the 
a  suggestion  of  damages.  If  ap-  present  value  and  cost  of  making 
peared  that  within  a  ytar  after  the  them,  and  the  damage  sustained 
injunction  issued  the  demand  for  that  from  stoppage  of  business;  but  not 
class  of  beds  fell  off  so  much  that  it  the  profits  he  m'ght  have  made  if 
was  unprofitable  to  manufacture  he  had  sold  the  beds,  nor  for  storage, 
them;  that  when  suit  was  begun,  one  nor  for  interest  on  loss  in  value  on 
of  the  defendants  had  on  hand,  for  the  cost.  Tobey  Furniture  Co.  v. 
sale,   ten  beds,   and   had   spent  some  Colby,  35   Fed.  592. 

money  in  advertisement.     Held,  that  45.  Lallande  v.  Trezevant,  39  La- 

he  should  be  allowed  as  damages  a      Ann.  b30,  2  So.  573. 

321 
21 


§196 


Damages. 


winch  is  due  him,  interest  thereon  during  the  pendency  of  the 
injunction  may  be  a  proper  measure  of  his  damage.  Thus  where 
a  judgment  creditor  was  enjoined  from  the  collection  of  his  judg- 
ment and  the  injunction  was  dissolved  as  wrongful,  the  measure  of 
his  damage  as  against  the  sureties  was  held  to  be  the  interest  on 
the  judgment  for  the  time  the  injunction  was  in  force.46  Where 
judgment  creditors  were  enjoined  from  selling  their  debtor's  land, 
and  a  year  later  the  injunction  was  dissolved  and  the  sale  made, 
but  nob  for  enough  to  pay  the  judgment,  it  was  held  that  a  year's 
interest  on  the  purchase  money  should  be  allowed  as  damages.47 
And  where  a  corporation  has  been  restrained  by  injunction  from 
collecting  the  dividends  due  to  its  stockholders,  and  the  injunction 
is  afterwards  dissolved,  the  stockholders  may  recover  simple 
interest'  thereon  from  the  time  the  dividends  were  declared,  pend- 
ing the  injunction,  up  to  the  period  of  the  dissolution  thereof.48 


46.  Neal  v.  Taylor,  56  Ark.  521, 
20  S.  W.  352.  In  an  assessment  of 
damages  upon  the  disso'ution  of  a 
temporary  injunction  restraining  de- 
fendants from  completing  a  work  un- 
dertaken by  contract  there  is  no 
error  in  an  instruction  that  defend- 
ants are  entitled  to  6  per  cent,  upon 
the  money  detained  from  them  under 
their  contract,  during  the  pendency 
of  the  injunction,  from  the  date  on 
which  they  would  have  completed  the 
contract  until  date  of  dissolution,  to 
reasonable  counsel  fees  and  expenses, 
and  compensation  for  loss  of  time  in 
defending  against  the  injunction  and 
reasonable  costs  for  putting  the 
work  into  the  same  condition  it  was 
in  when  the  injunction  was  served, 
provided  the  construction  was  proper 
in  the  first  instance,  and  the  deteri- 
oration not  due  to  faulty  construc- 
tion. St.  Louis  R.  Co.  v.  Schneider, 
30  Mo.  App.  620. 

47.  Hill  v.  Thomas,  19  S.  C.  230. 
In  Graham  v.  Campbell,  L.  R.  7  Ch. 
D.  490,  the  vendor  of  land,  who  was 


enjoined  from  completing  the  sale, 
was  not  allowed  consequential  dam- 
ages caused  by  the  delay  but  only 
interest  upon  the  purchase  price. 

48.  Heck  v.  Bulkley  (Tenn.),  1  S. 
W.  612.  A  judgment  in  favor  of  the 
plaintiff  was  a  lien  on  a  lot  of  land 
belonging  to  the  defendant,  and  ex- 
ecution had  issued  against  the  same. 
An  injunction  su't  brought  by  the 
defendant  to  res. rain  the  sale  was 
dismissed.  Plaintiff  had  a  second  ex- 
ecution issued,  and,  at  the  execution 
sale,  bid  in  the  lot  for  the  amount 
of  his  execution.  If  the  premises 
had  been  sold  under  the  first  levy, 
and  if  the  plaintiff  had  bought  them 
in,  he  would  have  come  into  posses- 
sion 17  months  earlier  than  he  did. 
In  an  action  on  the  injunction  bond 
for  the  costs  of  the  first  execution, 
and  damages  for  the  delay,  held,  that, 
in  the  absence  of  any  averment  to  the 
contrary,  it  must  be  assumed  that  the 
costs  made  on  the  first  execution, 
and  the  accrued  interest  on  the  judg- 
ment, were  embraced  in  the  second 


322 


Damages. 


$197 


But  where  interest  is  not  expressly  stipulated  for  in  the  undertak- 
ing, its  allowance  as  damages  is  a  matter  of  discretion.49 


§  197.  Rents  as  damages;  injunction  against  asserting  owner- 
ship.— The  rental  value  of  the  premises,  the  use  of  which  is  lost 
through  an  injunction,  is  a  proper  element  of  damage.  It  was  so 
held  where  the  defendant  was  deprived  by  the  injunction  of  the 
use  of  his  saw  mill;50  and  where  the  injunction  delayed  him  in 
the  completion  of  a  building  he  had  commenced.51  In  a  case  in 
New  York  it  is  decided  that  where  an  injunction  operates  to 
restrain  the  collection  of  rent  the  damages  are  to  be  estimated  on 
the  basis  of  the  loss  of  rent  by  reason  of  the  insolvency  of  the 
tenants  or   otherwise   during   the  pendency   of   the   injunction.62 


execution,  and  that  the  full  amount 
of  that  execution  was  made  notwith- 
standing it  was  the  plaintiff  who  bid 
in  the  property.  Johnston  v.  Moser, 
72  Iowa,  654,  34  N.  VV.  459. 

49.  Tobey  Furniture  Co.  v.  Colby, 
35  Fed.  592.  The  only  liability  on 
a  bond  given  in  a  suit  to  enjoin  a 
Bale  of  land  under  a  decree  is  for 
such  damages  as  were  caused  by  the 
delay  in  the  execution  of  the  decree. 
Staples  v.  White.  Handley  &  Co.,  88 
Tenn.  30,  12  S.  W.  339.  In  an  action 
on  an  injunction  bond  for  costs  al- 
leged, to  have  been  incurred  in  ob- 
taining a  dissolution  of  the  injunc- 
tion, it  appeared  that  plaintiff  was 
proceeding  to  sell  certain  lands  under 
a  decree  of  foreclosure,  when  defend- 
ant, claiming  to  be  the  owner  of  the 
lanas  under  a  tax  deed,  brought  an 
action  to  enjoin  the  sale  and  to  quiet 
his  title,  and  filed  the  bond  sued  on. 
Held,  that  the  claim  of  plaintiff  for 
the  value  of  the  use  of  the  land  for 
the  time  he  was  kept  out  of  posses- 
sion, or  interest  on  the  sum  for  which 
he  would  have  bid  it  in  at  the  sale, 
depends  on  contingencies  which  can- 


not be  known,  and  should  not  be  al- 
lowed. Bui  lard  v.  Harkness,  83  Iowa, 
373,  49  fc.  W.  855. 

50.  Wood  v.  State,  66  Md.  61,  5 
Atl.   476. 

51.  Roberts  v.  White,  73  N.  Y. 
375.  Under  the  Missouri  statute  pro- 
viding that  an  injunction  bond  must 
be  in  a  sum  sufficient  "  to  secure  the 
amount  or  other  matter  to  be  en- 
joined, and  all  damages  that  may  be 
occasioned  by  such  injunction,"  a 
party  who  has  been  enjoined  from 
proceedirg  in  a  partition  suit,  to 
whom  the  rents  have  been  awarded 
on  dissolution  of  the  injunction,  may 
recover  under  the  injunction  bond  the 
amount  of  such  rents  lost  and  attor- 
ney's fees  occasioned  by  reason  of 
the  injunction ;  but  a  party  as  to 
whom  no  restraining  order  has  been 
granted,  and  who  is  interested  in  the 
subject-matter  of  the  suit  as  a  prior 
lienor,  will  not  be  awarded  attorney's 
fees.  Follow  ay  v.  Holloway.  103  Mo. 
274,   15  S.  W.  536. 

52.  McDonald  v.  James,  47  How. 
Prac.  (N.  Y.)  474. 


323 


§  107  Damages. 

Where  a  person  is  restrained  from  exorcising  ownership  over  his 
real  property  he  is  entitled  to  such  damages  as  are  the  necessary 
and  proximate  result  of  such  deprivation.  Thus  where  a  farmer 
while  engaged  in  plowing  and  seeding  in  January  was  enjoined 
from  the  use  of  his  land,  and  the  injunction  was  not  dissolved  until 
December,  he  was  held  entitled  as  damages  not  merely  to  the  rental 
value  of  the  land  but  to  the  value  of  the  crop  he  would  have  raised.53 
And  where  a  party  is  enjoined  from  asserting  his  ownership  in  any 
way  to  property  and  during  the  pendency  of  the  injunction  the 
plaintiff  carries  off  and  converts  the  property  to  his  own  use  the 
measure  of  damages  in  an  action  on  the  injunction  bond  is  prima 
facie  the  value  of  the  property  in  question.54  And  where  summary 
proceedings  are  wrongfully  enjoined  the  rent  lost  by  the  delay  is 
the  natural  measure  of  the  damages  caused  by  the  injunction.55 
But  where  a  person  enjoined  from  selling  certain  land  under  de- 
cree of  foreclosure  claims  he  himself  would  have  bid  it  in  had  the 
sale  not  been  thus  prev<  nted,  he  is  not  entitled  to  the  value  of  the 
use  of  the  land  pending  the  injunction,  because  it  is  impossible 
to  know  what  would  have  been  the  result  of  the  sale.56  And  where 
the  sale  of  lands  under  a  mortgage  is  restrained  it  is  decided  that, 
upon  a  subsequent  dissolution  of  the  injunction,  there  can  be  no 
recovery  on  the  bond,  for  rents  collected  while  the  injunction  was 
in  force,  as  the  appointment  of  a  receiver  to  collect  and  hold  the 
rents  was  not  prevented  by  the  injunction.57  And  where  the  re- 
moval of  buildings  by  the  lessee  has  been  enjoined  the  measure  of 
damages  is  held  to  be  interest  on  the  value  of  the  materials  therein 
and  not  the  rental  value  of  the  buildings  which  it  was  necessary  to 

53.  Rice  v.  Cook,  92  Cal.  144,  28  debt  and  interest,  the  assignee  of  the 
Pac    219.  mortgagee  is  not  entitled  to  damages 

54.  Barton  v.  Fisk.  30  N.  Y.  166.  by  reason  of  an  injunction  restrain- 

55.  Bray  v.  Poillon,  2  Hun  (N.  ing  her  from  collecting  the  rents  on 
Y  )     383.  default,  unless,  on  a  sale  of  the  land 

56.  Bullard  v.  Harkness,  83  Iowa,  under  the  mortgage,  it  failed  to  sat- 
373,  49  N.  W.  855;  Johnson  v.  Moser,  isfy  the  mortgage,  and  the  rent  was 
72  Iowa,  654.  Under  a  mortgage  em-  necessary  thereto.  Schening  v.  Cofer, 
powering  the  mortgagee,  on  default.  97  Ala.  726,  12  S\  414. 

to  realize  out  of  the  land,  in  rents.  57.  Curry    v.    American   Freehold 

or  by  sale  thereof,  sufficient  to  pay  Land  M.  Co.,  124  Ala.  614,  27  So. 
the  expenses  of  foreclosure,  and  the      454. 

324 


Damages. 


§198 


tear  down  in  order  to  remove  them.57a  Again,  if  the  party  enjoined 
was  not  in  fact  entitled  to  possession,  or  would  have  had  to  account 
for  the  rents  if  he  had  received  them,  then  they  are  not  to  be 
allowed  as  damages.58 


§  198.  Loss  of  profits  as  damages. — The  loss  of  profits  sus- 
tained by  the  person  enjoined  during  the  suspension  of  his  business 
by  the  injunction  is  often  too  contingent  and  conjectural  to  serve 
as  a  reliable  measure  of  damages  in  defendant's  action  therefor  on 
the  injunction  bond.59  Thus  where  an  injunction  restrains  the 
extension  of  a  street  railroad,  possible  profits  which  might  have 


57a.  Ridpath  v.  Merriam,  22 
Wash.  311,  6J  Pac.   1120. 

58.  In  an  action  on  an  injunction 
bond  executed  by  a  mortgagor  on  the 
granting  of  an  injunction  suspending 
tue  operation  of  a  decree  of  fore- 
closure, the  plaintiff  mortgagee  can- 
not recover  for  timber  sold  from  the 
premises,  or  for  the  rental  value  of 
the  premises,  during  the  pendency  of 
tne  injunction,  and  before  the  decree 
becomes  absolute,  when  there  is  no 
redemption,  and  the  value  of  the  se- 
curity is  greater  than  the  mortgage 
debt.  Hill  v.  hill,  59  Vt.  125,  7 
Atl.  4G8. 

59.  An  injunction  deprived  thg 
owners  of  a  portable  saw  mill  of  its 
use  for  six  weeks.  Held,  in  an  action 
on  the  bond,  that  the  rental  value  of 
the  mill  for  that  time  was  recover- 
able, as  was  the  salary  of  its  man- 
ager during  that  time,  earned  under 
an  existing  contract,  and  the  amount 
paid  to  a  watchman,  but  defendant's 
claim  for  loss  of  profits  was  rejected. 
Wood  v.  State,  GO  Md.  61,  5  Atl.  47G. 
See,  also,  Lehman  v.  McQuown,  31 
Fed.  138.  In  Livingston  v.  Exum, 
19  S.  C.  223,  plaintiff  enjoined  the 
defendants  Phillips  and  Exum  from 
getting    crude    turpentine    on    lands 


which  he  claimed;  final  judgment  was 
rendered  for  defendants  and  the  in- 
junction dissolved.  Exum  was  not 
engaged  in  getting  crude  turpentine 
but  Phillips  was,  and  was  under  con- 
tract to  furnish  to  Exum  for  distilla- 
tion all  that  he  got.  It  was  held  that 
the  loss  to  Phillips  was  caused  by 
the  injunction,  but  that  the  loss  to 
Exum  was  not  the  natural  and  prox- 
imate effect  of  the  injunction,  and 
was  too  remote  and  uncertain,  rest- 
ing entirely  upon  the  question  of 
net  profits  which  he  might  have  made 
had  Phillips  furnished  the  crude  ma- 
terial. "  11  is  damages,"  as  the  court 
well  remarks,  "  arose  from  the 
breach  of  contract  by  Phillips;  that 
this  breach  was  caused  by  plaintiff's 
injunction  cannot  transfer  Exum's 
claim  against  Phillips  over  upon  the 
plaintiff.  Besides  his  claim  for  dam- 
ages being  dependent  upon  the  fact 
whether  he  would  have  realized  any 
profit  out  of  the  contract  with  Phil- 
lips, even  had  it  been  complied  with, 
makes  the  whole  claim  so  uncertain, 
doubtful  and  remote  as  properly  de- 
manded its  exclusion  in  the  estimate 
made  by  the  master.''  See,  also,  La 
Amistad  De  Rues,  5  Wheat.  (U.  S.) 
385,  5  L.  Ed.  115. 


325 


§  199  Damaoes. 

accrued  from  such  extension  cannot  be  allowed  as  damages  to  the 
railroad  company.60  And  where  an  injunction  caused  a  cessation 
of  defendant's  factory,  which  it  was  proved  could  turn  out  a  cer- 
tain amount  of  goods,  it  was  decided  on  appeal  that  it  could  not  be 
inferred  from  such  evidence  that  the  defendant  would  have  received 
orders  to  that  amount  but  for  the  injunction;  and  therefore  that 
a  loss  of  profits  thereon  could  not  be  allowed  as  damages  caused 
by  the  injunction.61 

§  199.  Loss  of  profits  sometimes  allowed. — While  the  profits 
which  the  defendant  would  have  made,  had  his  enterprises  not  been 
suspended  by  the  injunction,  are  generally  too  contingent  and 
speculative  to  be  recovered  as  damages  in  an  action  on  the  injunc- 
tion bond,  yet,  when  a  party  is  prevented  by  injunction  from  carry- 
ing on  a  thoroughly  established  and  largely  profitable  business,  he 
must  be  compensated  for  the  loss  of  profits  thereby  caused,  or  an 
injunction  in  such  a  case  would  be  a  very  convenient  way  of  getting 
rid  of  a  business  rival.62  In  this  connection  it  is  said  in  a  recent 
case  in  Illinois:  "Where  by  the  issuance  of  an  injunction,  a 
business  is  unavoidably  suspended,  and  thereby  injured,  damages 
may  be  allowed.  It  may  not  be  possible  to  show  by  demonstration 
the  precise  extent  of  such  damages,  but  profits  for  a  reasonable 
period  next  preceding  the  time,  when  the  injury  was  inflicted,  may 
be  taken  as  the  measure  of  such  damages,  and  as  the  basis  of  an 
estimate  thereof,  leaving  the  other  party  to  show  that,  by  depres- 
sion in  trade  or  other  causes,  they  would  have  be  n  It  ss."  63  So 
damages  for  having  been  wrongfully  enjoined  from  operating  a 

60.  Chicago  City  R.  Co.  v.  Howi-  upon  this  question  evidence  of  the 
son.   86  111.  215.  profits   which    he   was   actually   mak- 

61.  Manufacturers,  etc..  Bank  v.  ing  is  admissible.  Allison  v.  Chand- 
Foik,  50  N.  Y.  St.  Rep.  802.  ler.  11  Mich.  558;  Chapman  v.  Kirby, 

62.  Lambert  v.  Haskell.  80  Cal.  49  111.  219;  Simmons  v.  Brown,  5  R. 
611  22  Pac.  327,  per  Hayne,  J.:  1.299;  Gibson  v.  Fischer,  68  Iowa, 
"The  best  considered  cases  agree  that  30,  25  N.  W.  914;  Goebel  v.  Hough, 
where  an  established  business  is  26  Minn.  256;  Shafer  v.  Wilson,  44 
wrongfully  injured  or  destroyed  the  Md.  268." 

owner    of    the    business    can    recover  63.  Landis  v.   Wolf,   206   111.  392, 

damages  sustained  thereby,  and  that      399,  69  N.  E.  103.    Per  Magruder,  J. 

326 


Damages.  §§  200,  201 

certain  mine  may  include  lost  profits.64  But  where  the  profits 
claimed  to  have  been  lost  by  reason  of  an  injunction  would  have 
depended  on  the  carrying  out  of  special  contracts  between  third 
persons  and  the  party  enjoined,  they  are  generally  too  speculative 
and  remote  to  be  allowed  as  damages.65 

§  200.  Loss  of  time  and  anxiety;  damnum  absque  injuria. — 
Under  an  injunction  bond  conditioned  for  the  payment  of  such 
damages  as  defendant  shall  sustain  by  reason  of  the  injunction, 
compensation  for  his  own  time  and  effort  devoted  to  getting  rid 
of  the  injunction,  and  for  his  mental  strain  and  anxiety  while  so 
employed,  is  not  allowed  as  damages.  Time  and  attention  thus 
bestowed  the  law  regards  a3  having  been  given  by  the  party  to 
his  own  business,  and  is  deemed  damnum  absque  injuria.66 

§  201.  Exemplary  damages  not  recoverable. — Where  an  in- 
junction is  procured  by  plaintiff  without  malice,  and  in  the  honest 
belief  that  injunction  is  the  proper  remedy,  the  defendant  cannot 
recover  exemplary  or  punitive  damages,  and  there  seems  to  be  no 
authority  that  such  damages  are  recoverable  even  for  malice  in  an 
action  on  the  injunction  bond.67     But  there  is  in  Texas  and  some 

64.  Findlay  v.  Carson,  97  Iowa,  not  a  damage.  Tliere  is  such  a  thing 
537,   66   N.    W.    <59.  known  to  the  law  a9  damage  without 

65.  Tobey  Furniture  Co.  v.  Colby,  injury,  and  this  occurs  where  dam- 
35    Fed.    592.  age  results  from  an  act  or  omission 

66.  Cook  v.  Chapman,  41  N.  J.  which  the  law  does  not  esteem  an 
Eq.  152,  100,  2  Atl.  286.  per  Van  injury.  .  .  .  Every  litigation  re- 
Fleet,  V.  C. :  "The  master  allowed  quires  more  or  less  time  and  trouble, 
the  defendant  $2,500  as  compensation  The  law  makes  it  the  duty  of  liti- 
for  his  time  and  services  in  procur-  gants  to  be  diligent  and  vigilant,  but 
ing  the  dissolution  of  the  injunc-  it  has  never  been  understood  that  a 
tion,  and  for  the  mental  strain  and  successful  litigant  was  entitled  as 
anxiety  he  suffered  in  consequence  against  his  adversary,  to  compensa- 
of  the  injunction.  This  allowance  tion  for  the  time  and  attention  which 
is  contrary  I  think,  to  both  precedent  it  was  necessary  for  him  to  bestow 
and  principle.  An  attempt  was  made  upon  the  litigation."  In  Riggs  v. 
to  get  a  similar  allowance  in  Ed-  Bell,  42  La.  Ann.  666,  7  So.  787, 
wards  v.  Bodine,  4  Edw.  Ch.  292;  a  claim  of  damages  for  loss  of  time 
aff'd,   11    Paige,  223.     Both  the  vice  was  rejected. 

chancellor  and  chancellor  rejected  the  67.  Galveston,  H.  &  S.  A.  R.  Co.  T. 

claim,  declaring  that   suofa  loss  was       Ware,  74  Tex.  47,  11  S.  W.  918. 

327 


§  201  Damages. 

other  States  a  statutory  allowance  of  ten  per  cent,  as  damages 
where  the  collection  of  a  money  judgment  has  been  enjoined  for 
the  sake  of  delay.68  It  was  decided  in  Illinois  in  18G2,  that  where 
an  injunction  bond  had  been  given  an  action  on  the  case  would  not 
lie  for  maliciously  or  improperly  causing  an  injunction  to  be 
issued,  but  that  the  remedy  must  be  on  the  bond  ;c9  in  accordance 
with  the  principle  that  when  a  party  has  taken  a  higher  security 
his  suit  must  be  brought  on  that  security.70  In  Louisiana,  however, 
it  is  eleclared  in  an  early  rase  that  it  is  the  duty  of  the  courts  to  mulct 
in  exemplary  damages  those  who  wantonly  abuse  the  equitable 
remedy  of  injunction.'1  And  in  1849  the  Supreme  Court  of  Ken- 
tucky expressed  the  opinion  that  the  common  law  gave  an  action 
on  the  case  for  damages  for  suing  out  an  injunction  maliciously, 
if  proper  averments  of  malice  and  absence  of  probable  cause  were 
made,  and  that  actions  on  the  case  and  on  the  bond  not  being 
co-extensive  remedies  the  former  was  not  merged  in  the  latter;72 
and  in  1892  the  Appellate  Court  of  Illinois  was  inclined  to  regard 
the  Kentucky  decision  as  more  consistent  with  principle  than  that 
of  its  own  State.73  And  in  a  recent  case  in  a  Federal  court  it  is 
declared  that  where  an  injunction  is  maliciously  obtained  punitive 
damages  may  be  awarded.74 

68.  Galveston.  H.  &  S.  A.  R.  Co.  v.  the  injunction     bond     in    a     case  in 

Ware,  73  'lex.  47,  11  S.  W.  918,  per  which  the  Supreme  Court  could  find 

Gaines,  J.:     "We  incline  to  the  opin-  no  evidence  of  malice,  and  that  court 

ion  that  such    (exemplary)    damages  did  not  hesitate  to  reverse  the  judg- 

are    not    recoverable.      The    doctrine  ment  entered  on  the  verdict, 

seems  to  be  recognized  in  High.  Inj.  69.     Gorton  v.  Brown,  27  111.  489. 

§    1665,   but  the   only   case   cited   in  70.  Gorton  v.   Brown.  27  111.  489, 

support    of    the    text    is    Brown    v.  495;    Touissant  v.  Martinnant,  2  T. 

Tyler,  34  Tex.  168,  in  which  the  ques-  R.    104;    Cutter   v.   Powell,    6   T.   R. 

tion  was  not  involved.    The  statutory  324. 

allowance   of    10    per    cent,    damages  71.  Dorsey  v.  Vaughan,  5  La.  Ann. 

where    the    collection    of    money    has  155.  cited  and  followed  in  Pendleton 

been  enjoined  and  tne  injunction  pro-  v.  Eaton,  23  La.  Ann.  435. 

cured  for  delay,  is  in  the  nature  of  a  72.  Cox   v.   Taylor,     10    B.    Mon. 

penalty  and  tends  to  indicate  that  no  (Ky.)    17,  21. 

other  exemplary   damages   are  to  be  73.  Crate  v.  Kohlsaat,  44  111.  App. 

allowed."    In  Brown  v.  Tyler,  34  Tex.  460. 

168,  the  jury  awarded  $1,425  puni-  74.  Terry    v.    Robbins,    122    Fed. 

tory  damages  against  the  sureties  on  725. 

328 


Damages. 


§202 


§  202.  Damages  accruing  after  final  decree. — As  the  functions 
of  a  preliminary  injunction  cease  when  the  final  decree  is  made,75 
and  the  injunction  bond  is  given  only  on  the  preliminary  injunc- 
tion, damages  which  accrue  subsequent  to  the  final  decree,  though 
such  decree  be  reversed  on  appeal,  cannot  be  recovered  on  the  bond ; 
and  the  rule  would  be  the  same  if  the  bond  expressly  provided  for 
the  payment  of  such  subsequent  damages  unless  authorized  to  that 
effect  by  statute.76    And  attorney's  fees  are  not  allowed  for  services 


'    75.  Jackson  v.  Bunnell,  113  N.  Y. 
216,  21  N.  E.  79. 

76.  Lambert   v.    Haskell.    80    Cal. 
611,  619,  22  Pac.  327,  per  Hayne.  J.: 
"We   think  that  the  court  erred  in 
allowing     the     plaintiff     to     recover 
damages  accruing  after  the  final  de- 
cree made  in  February,  1881.     By  it 
the  court  decreed  that  the  temporary 
injunction      heretofore      granted      be 
made  perpetual,  and  that  said  defend- 
ant   be    enjoined    for   the    space    of 
twenty   years,   etc.     An  appeal    was 
taken   from  this  decree,  and  it  was 
reversed.    The  remittitur  was  filed  in 
the    lower    court     on    July    5,    1882. 
Shortly  afterward  the  suit  was  dis- 
missed upon  motion.     The  trial  court 
in    the   present   case   evidently     pro- 
ceeded   upon     the    theory     that    the 
plaintiff    herein   was   entitled   to    re- 
cover damages  for  the  whole  period 
from   the   giving  of  the   undertaking 
down  to  the  dismissal  of  the  suit  in 
1882.     .     .     •     The   position    of    the 
appellants  is,  that  all  that  could  oe 
recovered  in  any  view  was  '  such  dam- 
ages as  were  sustained  by  the  parties 
enjoined    by    reason    of    the    loss    of 
profits    of     their   business    from   the 
time  the  undertaking  was  given  until 
the    injunction    was    made    perpetual 
by  the  court,  i.  e.,  between  January 
27,  1880.  and  February  5,  1881.'  And 
we  think  that  this  position  must  be 
sustained,  both  as  to  the  loss  of  prof- 


its and  as  to  counsel  fees.     The  con- 
dition  of    liability   expressed    in    the 
undertaking  is,   '  if  the  said  District 
Court    finally    decide    that    the    said 
plaintiffs  were  not  entitled,'  etc.  This 
seems  to  us  to  point  to  the  final  de- 
cree to  be  made  after  trial  of  the  case. 
But  even  if  it  were  otherwise — even 
if  the  undertaking  had  expressly  pro- 
vided  for   a    subsequent   liability — if 
such  provision  be  outside  of  what  is 
required  by  the  statute,  it  would  be 
void.     For  it  is  settled  that  a  statu- 
tory undertaking  beyond  what  is  re- 
quired by  the  statute,  is  to  that  ex- 
tent without  consideration  and  inop- 
erative.     Powers   v.    Crane,    67    Cal. 
65;  People  v.  Cabannes,  20  Cal.  528. 
.     .     .     The   same  doctrine  was  laid 
down    and    the    very    point    involved 
here  was  decided  in  Webber  v.  Wil- 
cox, 45  Cal.  302.    The  material  facts 
of  that  case  were  identical  with  the 
material   facts  here.     A  preliminary 
injunction    was    granted,    and    after 
trial,  a  final  injunction  was  decreed. 
The   final   decree  was  appealed  from 
and  was   reversed  and  the  suit  was 
thereupon    dismissed.      In   an   action 
upon    the    undertaking,    it   was    held 
there  could  be  no  recovery  against  the 
sureties  for  costs  or  counsel  fees  ex- 
pended after  the  rendition  of  the  final 
decree  in  the  court  below.     And  the 
Supreme  Court  said :     '  When  the  de- 
cree for  a  perpetual  injunction  was 


329 


§203 


Damaoes. 


in  the  Supreme  Court  on  appeal  from  the  order  of  dissolution.77 
But  while  the  party  enjoined  is  not.  entitled  to  recover  his  counsel 
fees  paid  on  appeal  from  the  final  decree,  he  may  be  entitled  to 
counsel  fees  upon  appeal  from  the  order  refusing  to  dissolve  the 
preliminary  injunction  where  sueh  order  is  made  and  appealed 
from  before  the  final  decree  is  made.78 

§  20.3.  Counsel  fees  on  dissolution  of  injunction. — The  weight 
of  authority  supports  the  rule  that'  there  may  be  a  recovery  as 
damages  of  counsel  fers  expended  or  for  which  a  liability  has  b  en 
incurred  solely  in  procuring  the  dissolution  of  an  injunction.79 
Put  a  decree  assessing  damages  to  cover  solicitor's  fees,  upon  the 
dissolution  of  an  injunction,  is  erroneous  where  there  is  no  evidence 


rendered  the  order  for  a  preliminary 
injunction  was  merged  or  ceased  to 
have  any  further  effect  and  there- 
after the  case  stood  in  the  same  con- 
dition in  respect  to  damages  as  it 
would  have  done  had  no  preliminary 
order  been  made.'  This  case  holds 
that  the  function  of  a  preliminary 
injunction  ceases  upon  the  rendition 
of  the  final  decree.  And  upon  the 
same  principle  differently  applied  it 
has  been  held  that  the  functions  of  a 
restraining  order  pending  the  issu- 
ance of  a  preliminary  injunction 
cease  upon  the  issuance  of  the  latter. 
Cohen  v.  Gray,  70  Cal.  85.  It  re- 
sults that  tne  plaintiff  cannot  hold 
the  sureties  in  damages  either  for 
loss  of  profits  or  counsel  fees  accru- 
ing after  the  final  decree  in  the  court 
below."  See,  also,  Jeter  v.  Lang- 
horne,  5  Gratt.  (Va.)  193;  Wood- 
son v.  Johns,  3  Munf.  (Va.)  230,  that 
costs  of  appeal  from  final  decree  can- 
not be  recovered  in  action  on  in- 
junction bond. 

77.  Ellwood  M'f'g  Co.  v.   Rankin, 
70  Iowa,  403,  30  K  W.  677. 

78.  Porter  v.  Hopkins,  03  Cal.  53. 


79.  California.  —  Bustamerte  v. 
Stewart,  55  Cal.  115;  Ah  Thaie  v. 
Quan  Wan,  3  Cal.  216. 

Colorado.— Belmont  Min.  &  M.  Co. 
v.  Costigan,  21  Colo.  465.  42  Pac. 
650. 

Illinois. — Marks  v.  Columbia  Yacht 
Club,  219  111.  417,  76  N.  E.  582;  Lam- 
bert v.  Alcom,  144  111.  313.  33  N.  E. 
53,  21  L.  R.  A.  611;  Finnegan  v.  Al- 
len, 60   111.   App.  354. 

Iowa. — Fountain  v.  West,  68  Iowa, 
380,  27  N.  W.  264;  Behrens  v.  Mc- 
Kenzie,  23  Iowa,  333,  92  Am.  Dec. 
428;  Colby  v.  Meservey,  85  Iowa, 
555  52  N.  W.  499;  Lansley  v.  Metert, 
78  Iowa,  758,  42  N.  W.  635. 

Kansas. — Minocks  v.  Welles,  42 
Kan.  39,  21  Pac.  787. 

Kentucky. — May  v.  Deposit  Bank, 
5  Ky.  Law  Rep.  691. 

Louisiana. — Aiken  v.  Leathers,  40 
La.  Ann.  23,  3  So.  357;  Aiken  v. 
Leathers,  37  La.  Ann.  482;  Hereford 
v.   Bob.n,    14   La.   Ann.   333. 

Maine. — Thurston  v.  Haskell,  81 
Me.   303,  17  Atl.  73. 

Missouri. — Brownlee  v.  Ferwick, 
103  Mo.  420.  15  S.  W.  611;  St.  Louia 


330 


Damages.  §  204 

of  the  value  of  the  services  having  distinct  reference  to  the  dissolu- 
tion of  the  injunction.80  In  this  connection  it  is  decided  in  a  late 
case  in  Louisiana  that  whether  defendant  in  an  injunction  suit  in 
which  the  injunction  has  been  dissolved  should  recover  from  the 
plaintiff  in  injunction,  in  an  action  on  the  bond  his  attorney's 
fees  as  damages  and  if  so  how  much  is  to  be  determined  by  the 
facts  of  each  special  cause  and  not  decided  by  any  inflexible  rule.81 
The  fact,  however,  that  the  amount  claimed  for  counsel  fees  was 
paid  by  the  one  who  procured  the  dissolution  of  the  injunction  is 
not  conclusive  of  the  right  of  such  person  to  have  that  sum  taxed  as 
damages.82 

§  204.  Counsel  fees;  recovery  of  continued. — "While  the  general 
rule  is  that  the  costs  of  a  motion  to  dissolve  an  injunction  will  not 
be  allowed  as  damages  unless  it  is  successful,  yet  if  the  motion  is 
not  denied  upon  the  merits,  or  for  any  irregularity  in  making  it, 
but  because  the  court,  in  its  discretion,  defers  its  decision  until  the 
final  hearing,  and  the  result  then  shows  that  if  the  decision  had 
not  been  deferred,  the  motion  should  have  been  granted  when 
made,  then  the  costs  of  the  motion  should  be  allowed  as  damages 
caused  by  the  injunction.83  So,  too,  in  such  a  case  as  the  foregoing, 
a  trial  being  necessary  in  order  to  get  rid  of  the  injunction,  as 

I.  M.  &  S.   R.   Co.  v.  Schneider,   30  been  put  by  reason  of  the  issuance  of 

Mo.  App.  620;  Bohan  v.  Casey,  5  Mo.  an  injunction  and  in  his  ultimately 

App.    101.  successful    efforts    to    vacate    it    are 

Montana. — Montgomery  v.  Gilbert,  recoverable  by  him  as  damages.     In 

24  Mont.  121.  60  Pac.  1138;   City  of  re  Reed   (N.  Y.  App.  Div.  1908),  110 

Helena   v.    Burle,    15   Mont.    429,   39  N.  Y.  Supp.  834. 

Pac.  456;  Miles  v.  Edwards,  6  Mont.  80.  Zibell  v.  Barrett,  30  111.  App. 

180,  9  Pac.  814.  112. 

New  Jersey. — Cook  v.  Chapman,  41  81.  Elms  v.   Wright-BIodgett   Co., 

N.  J.  Eq.  152,  2  Atl.  286.  106  La.   19,  30  So.  315. 

New   York. — Roberts  v.  White,  73  82.  Dempster    v.    Langsingh,   234 

N.   Y.  375;    Rose  v.   Post,  56  N.   Y.  111.  381,  84  N.  E.  1032. 

603;  Baylis  v.  Scudder,  6  Hun,  300;  83.  Andrews   v.    Glenville    Woolen 

*itzpatrick  v.   Flagg,   12  Abb.  Prac.  Co.,    50   N.   Y.    282.     In    Wallace   v. 

189;   Willett  v.  Scovil,  4  Abb.  Prac.  York,  45  Iowa,  81,  it  was  held  that  a 

405.  party  might  recover  for  the  services 

But  see  §  210  herein.  of  counsel  in  preparing  a  motion  and 

Expenses   to   which   a   person   has  affidavits  to  dissolve  the  injunction, 

331 


§  205  Damages. 

well  as  to  dispose  of  the  issues  in  the  suit,  a  counsel  fee  upon  the 
trial  is  properly  allowed  as  damages  caused  by  the  injunction.84 
So  where  the  hearing  of  an  application  for  a  temporary  injunction 
has  been  unreasonably  postponed,  attorney's  fees  necessarily  in- 
curred in  effecting  a  dissolution  of  a  restraining  order  are  a  proper 
element  of  damage  in  case  it  is  determined  that  the  restraining 
order  should  not  have  been  allowed.83  And  in  New  York  it  is 
decided  that  when  a  motion  for  an  injunction  pendente  lite  has 
been  denied  and  a  preliminary  injunction  vacated  and  set  aside, 
the  defendant  on  a  reference  to  ascertain  the  damage  sustained  by 
reason  of  the  injunction  is  entitled  to  counsel  fees  incurred  on  the 
return  to  the  order  to  show  cause,  if  the  injunction  might  have 
remained  in  force  had  the  defendant  failed  to  appear.556  Counsel 
fees  are  not  recoverable  unless  they  were  necessarily  incurred  in 
some  successful  effort  to  dissolve  the  preliminary  injunction.87 

§  205.  Counsel  fees  where  injunction  only  relief  sought. — 
The  defendant  may  recover  counsel  fees  expended  in  procuring  a 
dissolution  of  the  injunction  when  the  injunction  was  the  only 
relief  sought  in  the  original  action.88    And  it  would  seem  to  follow 

if  they    were    made    in    good    faith,  the   dissolution     of     the     injunction, 

though    in   fact  the  motion  was  not  Also,  Cook  v.  Chapman,  41  N.  J.  Eq. 

passed  on  until  final  hearing.  152,   2  Atl.   28G;    Fountain   v.   West, 

Only  such  counsel  fees  as  were  C8   Iowa,  380,  27  N.  W.  264.     Upon 

incurred  on  the  motion  should  be  the  question  of  allowing  counsel  fees 

allowed.      Lawrence    v.    Trainer,    136  and  costs  as  damages,  where  the  at- 

111.  474,  27  N.  E.  197 ;  Elder  v.  Sabin,  tempt   to   dissolve    is   not  successful, 

66  111.  126;   Strong  v.  De  Forest,  15  see  Randall   v.   Carpenter,   88   N.   Y. 

Abb.  Prac.    (N.  Y.)    427.  283;  Allen  v.  Brown,  5  Lans.  (N.  Y.) 

84.  Andrews  v.  Glenville  Woolen  511;  Mitchell  v.  Hawley,  79  Cal.  301, 
Co.,  50  N.  Y.  282.  21  Pac.  833. 

85.  Gyger  v.  Courtney,  59  Neb.  88.  Raufman  v.  Evansville,  44  Ind. 
555    81  N.  W.  437.  392;    Colby    v.    Meservey,    85    Iowa, 

86.  Reeves  v.  Sullivan,  117  App.  555,  52  N.  W.  499;  Thomas  v.  Mc- 
Div.  (N.  Y.)  814,  102  N.  Y.  Supp.  Daneld,  77  Iowa,  126,  299,  41  N.  W. 
1003.  592;    Ford  v.  Loomis.  62  Iowa,  586, 

87.  Thurston  v.  Haskell,  81  Me.  16  N.  W.  193,  17  N.  W.  910;  Reece 
303,  17  Atl.  73.  See  Nimocks  v.  v.  Northway,  58  Iowa,  187,  12  N.  W. 
Welles,  42  Kan.  39,  21  Pac.  787,  258;  Holloway  v.  Holloway,  103  Mo. 
where  counsel  fees  were  recovered  on  274;   Hammerslougn  v.  Building  As- 

332 


Damages. 


§205 


that  where  an  injunction  which  is  the  only  relief  sought  is  refused 
there  may  be  a  recovery  of  expenses  for  attorney's  fees  necessarily 
incurred  in  defending  the  action.89  So  in  Indiana  it  is  decided 
that  the  dismissal  of  an  action  in  which  an  injunction  bond  was 
given  entitles  the  defendant  to  recover  his  expenses  incurred  in 
making  necessary  resistance  to  that  action,  including  reasonable 
attorney's  fees;  but,  if  other  relief  was  sought,  the  attorney's  fees 
must  be  restricted  to  those  necessarily  incurred  in  defeating  the 
injunction.90  And  in  an  early  case  in  New  York  it  is  held  that 
reasonable  counsel  fees  incurred  in  the  defense  of  a  suit  to  restrain 
the  payment  of  an  award  are  recoverable  upon  a  bond  conditioned 
for  the  payment  of  all  costs  and  damages  arising  from  the  obligor's 


soc'n,  79  Mo.  81;  Creek  v.  McManus, 
13  Mont.  152,  32  Pac.  675.  See  Olds 
v.  Cary,  13  Or.  302,  10  Pac.  786.  In 
Miles  v.  Edwards.  0  Mont.  180.  9  Pac. 
814,  in  an  action  on  a  bond  given 
upon  the  procuring  of  a  restraining 
order  which  is  subsequently  dis- 
solved the  plaintiff,  it  was  held,  is 
entitled  to  recover  as  an  element  of 
his  damages  for  reasonable  attorney's 
fees  paid  by  him  in  procuring  the 
dissolution  of  such  order  and  in  re- 
sisting the  application  for  a  final  in- 
junction, tnough  the  services  of  the 
attorney  were  performed  subsequent 
to  the  date  limited  by  the  order  for 
the  hearing  of  the  application  for 
the  injunction.  But  the  court  dis- 
tinguished that  case  from  Campbell 
v.  Metcalf,  1  Mont.  379;  Allport  v. 
Kelly,  2  Mont.  343,  "  where  the  re- 
lief by  injunction  was  ancillary  to 
the  main  action,  and  services  were 
rendered  by  the  attorneys  in  both  the 
auxiliary  and  main  actions  upon 
which  a  gross  value  was  fixed.  Here, 
so  far  as  appears,  no  services  were 
rendered  for  which  compensation 
was  made  and  damages  claimed  ex- 
cept about  the  injunction."  Where 
the    Supreme    Court    of   Appeals    re- 


verses a  decree  making  an  injunction 
perpetual,  and  dismisses  the  bill  in 
a  suit  in  which  an  injunction  is  the 
only  relief  asked  a  reasonable  amount 
paid  counsel  for  procuring  the  disso- 
lution of  the  injunction  may  be  re- 
covered, in  addition  to  the  taxable 
attorney's  fee,  in  a  suit  on  a  bond 
conditioned  for  the  payment  of  all 
costs  and  of  all  damages  sustained  in 
case  the  injunction  should  be  dis- 
solved. State  v.  Medford,  34  VV.  Va. 
633,  12  S.  E.  804.  Where  an  injunc- 
tion is  the  only  relief  sought  in  an 
action,  defendant  may  recover  for  at- 
torney's fees  necessarily  incurred  in 
answering  and  defending  the  action 
on  the  merits.,  in  an  action  on  the  in- 
junction bond.  Lansley  v.  Nietert, 
78  Iowa,  75o,  42  N.  W.  635.  See, 
al?o,  Aiken  v.  Leathers,  40  La.  Ann. 
23,  3  So.  357;  New  Nat.  Turnpike 
Co.  v.  Dulaney,  86  Ky.  516,  6  S.  W. 
590;  Moriarty  v.  Gait,  125  HI.  417, 
17  N.  E.  714. 

89.  Jamison  v.  Houston,  74  Miss. 
890.  21  So.  972;  Creek  v.  McManus, 
13  Mont.  152,  32  Pac.  675. 

See,  also,  cases  in  preceding  note. 

90.  Swan  v.  Timmons,  81  Ind.  243. 


333 


§  206  Damaqp;s. 

obtaining  an  injunction  or  from  his  contesting  payment.91  But  in 
a  case  in  Maine  it  is  decided  that  damages  within  the  meaning  of 
a  bond  is  the  pecuniary  loss  arising  from  the  restraint  imposed 
by  the  injunction  and  not  the  expenditure  in  the  defense  of  the 
suit.  In  this  case  the  object  of  the  bill  was  a  permanent  injunc- 
tion and  it  was  said  that  the  expenditure  for  counsel  fees  in- 
curred in  resisting  the  prayer  of  the  bill,  that  is  in  defending  the 
suit,  was  not  damages  within  the  meaning  of  the  bond.92  In  Ken- 
tucky the  rule  is  that  when  an  injunction  is  merely  ancillary  or  in 
aid  of  the  relief  sought  or  is  relied  on  to  secure  the  relief  when 
obtained  a  recovery  may  be  had  on  the  bond  for  the  payment  of 
reasonable  attorney's  fees  when  the  defendant  has  succeeded  in 
dissolving  the  injunction.  But  where  the  injunction  is  the  relief 
sought  and  in  fact  gives  the  relief  if  sustained,  there  can  be  no 
recovery  of  attorney's  fees  in  an  action  upon  the  bond.93  In  a  case 
in  Illinois  it  is  held  that  where  the  relief  sought  by  the  bill  was 
a  perpetual  injunction,  the  injunction  pendente  lite  being  a  mere 
ancillary  writ,  the  object  of  which  was  to  preserve  the  statu  quo 
until  a  final  hearing  could  be  had,  there  could  be  no  recovery  for 
counsel  fees  rendered  in  the  general  defense  of  the  suit,  the  court 
not  favoring  the  view  that  as  the  only  relief  sought  by  the  bill 
was  an  injunction,  the  entire  defense  was  virtually  directed  to  the 
object  of  procuring  a  dissolution  of  the  injunction,  and  therefore 
that  all  the  services  rendered  in  the  case  must  be  deemed  to  have 
been  rendered  for  that  purpose.94  And  a  view  similar  to  that  in 
the  Illinois  case  is  taken  in  a  case  in  California.95 

§  206.  Counsel  fees  where  injunction  ancillary  to  principal 

91.  Corcoran  v.  Judson,  24  N.  Y.  from    cutting     timber     from    certain 
106.  land,    defendant   was    not,    upon    the 

92.  Barrett  v.  Bowers,  87  Me.  185,  dissolution  of  the  injunction,  entitled, 
32  Atl.  871.  in  an  action  on  the  bond,  to  recover 

93.  Tyler    v.    Hamilton,    108    Ky.  counsel  fees. 

120,  55  S.  W.  920;   Turnpike  Co.  v.  94.  Lambert   v.    Alcorn,     144     111. 

Dulaney.  86  Ky.  518.  6  S.  W.  590.  313,  33  N.  E.  53,  21  L.  R.  A.  611. 

See.  also.  Epenbaugh  v.  Gooch.   15  95.  San    Diego   Water   Co.   v.    Pa- 

Ky.    Law    Rep.    576,    holding    that  cine  Coast  S.  S.  Co.,   101   Cal.  216, 

where    the    sole    purpose    of    an    in-  35  Pac.  651. 
junction  was    to    restrain  defendant 

334 


Damages. 


207 


relief. — Where  the  injunction  is  ancillary  to  the  principal  relief 
sought  by  the  bill,  and  its  dissolution  is  only  incidental  to  the 
defense  made,  and  the  counsel  fees  and  expenses  are  incurred  in 
defending  the  suit  generally,  they  cannot  be  assessed  as  damages.96 
So  it  is  decided  in  a  late  case  in  Alabama  that  where  the  injunction 
is  not  the  principal  aim  of  the  suit,  but  is  merely  incidental  to  other 
relief  sought,  the  expenses  of  counsel  fees  incurred  by  the  parties 
enjoined  in  the  defense  of  the  main  suit  and  irrespective  of  the 
injunction  cannot  properly  be  allowed  as  a  liability  on  the  bond.97 


§  207.  Counsel  fees  incurred  generally  in  case. — Upon  dissolu- 
tion of  an  injunction  on  motion,  damages  should  not  be  awardt  d 
for  counsel  fees  incurred  generally  in  the  case,  since  such  services 
may  include  matters  not  connected  with  the  injunction,98  for  it  is 


96.  Tabor  v.  Clark.  15  Colo.  434, 
25  Pac.  181;  Walker  v.  Pritchard, 
135  111.  103.  25  N.  E.  573;  Elder  v. 
Sabin.  60  111.  127 ;  Alexander  v.  Col- 
cord.  85  111.  323;  Blair  v.  Readincr. 
99  111.  600;  Field  v.  Medcnwald,  26 
111.  A  pp.  642;  Carrol  Co.  v.  Iowa  R. 
L.  Co.,  53  Iowa.  685,  6  N.  W.  69; 
Langworthy  v.  McKelvey,  25  Iowa, 
48;  Noble  v.  Arnold,  23  Ohio  St. 
264;  Riddle  v.  Cheadle,  25  Ohio  St. 
278;  Livingston  v.  Exum,  19  S.  C. 
223.  Compare  Epenbaugh  v.  Gooeh, 
15   Ky.   Law  Rep.   576. 

97.  Curry  v.  American  Freehold 
Land  M.  Co.,  124  Ala.  614.  27  So. 
454;  citing  Jackson  v.  Millspaugh, 
100  Ala.  285,  14  So.  44;  Boiling  v. 
Tate,  65  Ala.  417. 

98.  Alabama. — Boiling  v.  Tate,  65 
Ala.  417,  39  Am.  Rep.  5;  Robertson 
v.  Robertson,  58  Ala.  68. 

California. — San  Diego  Water  Co. 
v.  Pacific  Coast  S.  S.  Co.,  101  Cal. 
216,  35  Pac.  651 ;  Lambert  v.  Haskell, 
80  Cal.  611,  22  Pac.  327;  Porter  v. 
Hopkins,  63  Cal.  53;  Bustamente  v. 
Stewart.  55   Cal.   115. 


Colorado. — Tabor  v.  Clark,  15  Colo. 
434    25  Pac.   181. 

Illinois. — LamDert  v.  Alcorn.  144 
111.  313,  33  N.  E.  53.  21  L.  R.  A.  611  ; 
Lawrence  v.  Traner,  136  111.  474,  27 
N.  E.  197;  Elder  v.  Sabin,  66  111. 
126;  Allbright  v.  Smith,  68  111.  181; 
Hamilton  v.  Stewart,  59  111.  330; 
June  v.  Osgood,  57  111.  340;  Lich- 
tenstadt  v.  Fleisher,  24  111.  App.  92 

Kentucky. — Reading  v.  Davis,  6 
Ky.  Law  Rep.  661. 

Minnesota. — Lamb  v.  Shaw,  43 
Minn.  507,  45  N.  W.  1134. 

Montana. — Creek  v.  McManus.  13 
Mont.  152.  32  Pac.  675;  Parker  v. 
Bond.  5  Mont.  1,  1  Pac.  209;  Allport 
v.  Kelly,  2  Mont.  343. 

New  York — Newton  v.  Russell.  87 
N.  Y.  527;  Disbrow  v.  Garcia.  52  N. 
Y.  654;  ten  Eyck  v.  Sayers,  76  Hun, 
37,  27  N.  Y.  Supp.  588;  Fitzpatrick 
v.  Flagg,  12  Abb.  Prae.  189. 

Ohio.— Riddle  v.  Cheadle,  25  Ohio 
St.  278. 

South  Carolina. — Livingston  v. 
Exum,  19  S.  C.  223. 


335 


§207 


Damages. 


said  that  an  injunction  bond  docs  not  cover  counsel  fees  for  the 
trial  of  the  main  issue,  but  only  those  for  procuring  the  dissolution 
of  the  injunction."  And  in  those  jurisdictions  where  there  may  be 
a  recovery  of  counsel  fee?  incurred  in  the  trial  of  the  issue  in  the 
action  the  recovery  is  limited  to  those  fees  which  were  incurred 
solely  or  principally  in  consequence  of  the  injunction.1  So  in 
Louisiana  it  is  decided  that  under  the  rules  of  practice  damages 
are  to  be  allowed  for  services  rendered  in  dissolving  the  injunction 
or  other  conservatory  writ  and  that  the  weight  of  decision  is  against 
a  demand  for  damages  for  services  rendered  on  the  merits.2  So  the 
expense  which  defendant  is  put  to  in  defending  the  suit,  and  not 
on  account  of  the  injunction,  is  not  to  be  allowed  as  damages  in  an 


West  Virginia. — State  v.  Med  ford, 
34  W.  Va.  633,  12  S.  E.  8(54. 

Where  the  injunction  is  ancil- 
lary    to     <the      principal     relief 

sought,  fees  for  defending  the  suit 
generally  should  not  be  assessed  as 
damages  upon  the  dissolution  of  the 
injunction.  Dempster  v.  Langsingh, 
234  111.  381,   84  N.  E.  1032. 

In  an  action  on  an  injunction  bond, 
given  in  the  United  States  Circuit 
Court,  it  appeared  that  the  attor- 
neys for  the  defendant  in  the  injunc- 
tion suit  were  paid  $500  for  all  their 
services  in  the  case;  that  they  at- 
tempted to  get  the  temporary  injunc- 
tion dissolved,  but  failed;  that  af- 
terwards the  injunction  was  ended  by 
dismissal  of  the  action  because  of  a 
recent  decision  ot  the  Supreme  Court 
of  the  United  States  determining  the 
issues  against  the  plaintiff.  It  was 
not  provea  that  there  was  any  sep- 
arate or  distinct  amount  paid  to  the 
attorneys  for  the  at'.emp  to  procure 
the  dissolution.  Held,  that  it  was 
error  in  the  suit  on  the  bond  to 
award  $400  lor  attorney's  fees.  Mitch- 
ell v.  Hawley,  79  Cal.  301,  21  Pac. 
833. 

99.  Parker   v.    Bond,   5   Mont.    1, 


1  Pac.  209.  In  an  action  on  an  in- 
junction bond  for  costs  alleged  to 
have  been  incurred  in  obtaining  a  dis- 
solution of  the  injunction,  it  ap- 
peared that  plaintiff  was  proceeding 
to  6ell  certain  lands  under  a  decree 
of  foreclosure,  when  defendant,  claim- 
ing to  be  the  owner  of  the  land  under 
a  tax  deed  brought  an  action  to  en- 
join the  sale  and  to  quiet  his  title, 
and  filed  the  bond  sued  on.  On  final 
hearing  it  was  decreed  that  defend- 
ant held  the  lands  as  trustee  for 
plaintiff;  that  the  injunction  be  dis- 
solved; and  that  defendant  convey 
the  land  to  plaintiff;  but  no  direct 
attack  was  made  on  the  injunction. 
Held,  that  the  only  costs  incurred 
were  on  the  trial  of  the  issue  of  own- 
ership, to  which  the  injunction  was 
merely  auxiliary,  and  no  recovery 
could  be  had  on  the  injunction  bond. 
Thomas  v.  McDaneld,  77  Iowa,  300, 
42  a.  W.  301;  Bullard  v.  Harkness, 
83  Iowa,  373,  49  N.  W.  855. 

1.  Newton  v.  Russell,  87  N.  Y. 
527;  Disbrow  v.  Garcia,  52  N.  Y. 
6o4;  Lillie  v.  Lillie,  55  Vt.  470. 

2.  Caillouet  &  Maginnis  v.  Coguen- 
hem,  111  La.  CO,  35  So.  385. 


336 


Damages.  §  208 

action  on  the  bond  ;3  and  the  counsel  fees  of  the  final  hearing  are 
not  recoverable  as  damages  caused  by  the  injunction,  unless  the  sole 
or  main  question  to  be  determined  on  the  final  hearing  is  whether 
or  not  the  injunction  shall  be  continued.4  And  where  an  injunction 
is  dissolved  because  of  the  insufficiency  of  the  petition,  the  expense 
of  procuring  affidavits  in  support  of  a  motion  to  dissolve  is  not 
covered  by  the  bond.5  When  the  injunction  is  not  dissolved  until 
the  final  hearing  of  the  case  on  the  merits  the  counsel  fees  upon  the 
dissolution  should  be  only  for  the  additional  expense  in  procuring 
the  dissolution  over  and  above  those  incurred  in  preparing  the 
case  for  hearing  on  the  merits.6  The  Ohio  doctrine  is  that  where 
the  defendant  in  resisting  the  action  would  have  been  compelled  to 
make  precisely  the  same  expenditure  for  costs  and  fees  that  he  has 
in  resisting  the  action  with  an  injunction,  it  cannot  be  said  that 
fuch  expenditure  was  caused  by  the  injunction.7 

§  208.  Counsel  fees;  where  not  paid. — Where  the  condition  of 
an  injunction  bond  is  to  pay  defendant  all  damages  he  may  sustain 
by  the  issuing  of  the  injunction,  in  case  it  be  dissolved,  defendant 
may  recover  his  reasonable  counsel  fees,  though  he  may  not  have 
actually  paid  the  fees,  provided  he  has  become  liable  for  them.8 

3.  Olds  v.  Cary.  13  Or.  362.  10  Pac.  81.  Counsel  fees  incurred  by  defend- 
786;  Bustamente  v.  Stewart,  55  Cal.  ant  for  services  in  an  action  other 
115.  The  dissolution  of  an  injunc-  than  those  made  necessary  by  a  tem- 
tion.  on  demurrer  to  the  bill,  fur-  porary  injunction  therein,  cannot  be 
nishes  no  ground  for  assessing  dam-  assessed  as  damages  upon  the  under- 
ages  for  the  services  of  the  attorney,  taking  given  on  granting  the  injunc- 
as  such  services  have  no  special  refer-  tion.  Randall  v.  Carpenter,  88  N.  Y. 
ence  to  the  injunction,  but  are  in  293;  Newton  v.  Russell,  87  N.  Y.  527. 
general  defense  of  the  suit.  Doyle  v.  5.  Ellwood  M'f'g  Co.  v.  Rankin,  70 
Brown.  30  111.  App.  88.  Iowa.  403,  30  N.  W.  677. 

4.  Disbrow    v.     Garcia.    52   N.   Y.  6.  Blair  v.  Reading,  99  III.  601. 
654.     In  Holloway  v.  Holloway,   103  7.  Noble    v.    Arnold,    23    Ohio    St. 
Mo.  274,  a  dissolution  of  the  injunc-  264;   Riddle  v.  Cheadle,  25  Ohio  St. 
tion    involved    a    trial    of    the   whole  278. 

case,  and  therefore  the  bulk  sum  of  8.  Alabama. — See    Garrett    v.    Lo- 

$350  for  counsel  fees  was  recoverable  gan,  18  Ala.  344. 

as  damages  in  an  action  on  the  bond,  Florida. — Wittrich    v.    O'Neal,    22 

following    the     ruling     in    Hammer-  Fla.  592. 

elaugh   v.    Building   Assoc'n,   79   Mo. 

337 

22 


§208 


Damages. 


But  counsel  fees  cannot  be  recovered,  as  damages  in  an  action  on 
an  injunction  bond,  for  services  which  were  rendered  gratuitously,* 
or  where  they  have  not  been  paid  and  no  claim  therefor  had  been 
made  when  the  action  on  the  bond  was  begun.10  And  where  the 
injunction  is  one  affecting  a  public  corporation  there  should  be  no 
allowance  on  its  dissolution  of  a  fee  for  the  services  of  an  attorney, 
whose  services  are  rendered  ex  officio.11  And  where  plaintiffs  sued 
on  an  injunction  bond  for  money  paid  for  counsel  fees  and  ex- 
penses, and  the  evidence  showed  the  money  had  all  been  paid  by 
one  plaintiff,  it  was  held  that  this  individual  expenditure  was  not 
within  the  condition  of  the  bond.12  Again,  where  several  parties 
were  interested  in  an  injunction  action,  but  only  one  was  made  a 
defendant,  and  he  employed  an  attorney,  through  whose  efforts  the 


Illinois.— Reich  v.  Berdel,  33  111. 
App.  180. 

Iowa. — Lansley  v.  Nietert,  78  Iowa, 
758,  42  N.  W.  635. 

Kansas. — Underhill  v.  Spencer,  25 
Kan.  71. 

Louisiana. — Meaux  v.  Pittman.  35 
La.  Ann.  360.  See  McRae  v.  Brown, 
12  La.  Ann.  181. 

Missouri.— Holthaus  v.  Hart,  9  Mo. 
App.   1. 

^ew  York. — Crounse  v.  Syracuse, 
C.  &  N.  Y.  R.  Co.,  32  Hun,  497. 

Texas. — Galveston,  H.  &  S.  A.  R. 
Co.  v.  Ware,  74  Tex.  47,  11  S.  W. 
918. 

But  see  Wilson  v.  McEvoy,  25  Cal. 
169. 

O.  Schening  v.  Cofer,  97  Ala.  726, 
12  So.  414. 

10.  In  an  action  by  an  adminis- 
trator on  an  injunction  bond,  the 
amount  of  attorneys'  fees  paid  by  the 
intestate  in  procuring  a  dissolution 
of  the  injunction  cannot  be  recovered, 
when  such  fees  have  not  been  paid, 
and  no  claim  for  them  had  been  filed 
against  the  estate,  at  the  time  of  fil- 
ing the  complaint.  Hooper  v.  Pat- 
terson   (Cal.),    32    Pac.  514.     Also, 

I 


Mitchell  v.  Hawley.  79  Cal.  301,  21 
Pac.  833;  Wilson  v.  McEvoy.  25  Cal. 
170;  Prader  v.  Grimm,  28  Cal.  11; 
Roussin  v.  Stewart,  33  Cal.  208; 
Bustamente  v.  Stewart,  55  Cal.  115. 

11.  Uilson   v.   Weber,  3  111.  App. 
125;  Unrig  v.  St.  Louis,  47  Mo.  528. 

12.  Hildrup  v.  Brentano,  16  111. 
App.  443,  per  Bailey,  J.:  "An  indi- 
vidual expenditure,  by  one  of  the 
plaintiffs,  is  not  within  the  condi- 
tion of  the  bond.  In  Ovington  v 
Smith,  78  111.  250,  an  injunction 
bond  with  precisely  the  same  condi- 
tion was  held  not  to  apply  to  dam- 
ages sustained  individually  by  one 
of  the  obligees.  In  Safford  v.  Miller, 
59  111.  205.  where  the  bond  was  con- 
ditioned for  the  payment  of  all  such 
damages  as  the  obligees  might  sus- 
tain by  reason  of  the  injunction,  and 
also  all  such  costs  and  damages  as 
might  be  awarded  against  the  princi- 
pal obligor,  in  case  the  injunction 
should  be  dissolved,  it  was  held  that 
damages  accruing  to  one  of  the  ob- 
ligees individually  were  not  within 
the  condition.  See,  also,  Rees  v.  Pelt- 
zer,  1  111.  App.  315." 


338 


Damages.  §§  209,  210 

injunction  was  dissolved,  in  an  action  on  the  injunction  undertak- 
ing, the  obligors  cannot  question  the  authority  of  the  attorney,  nor 
the  value  of  his  services,  for  the  reason  that  he  did  not  represent  all 
the  parties  who  were  interested  in  the  result  of  the  injunction 
action.13 

§209.  Counsel  fees;  assignment  to  attorney  of  claim  for. — 

The  attorney  through  whose  efforts  as  such  the  injunction  is  dis- 
solved, may  take  an  assignment  of  the  bond  and  recover  thereon 
for  his  services.14 

§  210.  Jurisdictions   where   counsel   fees   not   recoverable. — 

Counsel  fees  are  not  allowed  as  damages  in  the  Federal  courts  in 
actions  on  injunction  bonds,  being  deemed  to  be  opposed  to  the 
analogies  of  the  law  and  sound  public  policy.15  In  Pennsylvania, 
too,  counsel  fees  paid  in  procuring  the  dissolution  of  an  injunction 
are  not  covered  by  a  bond  to  indemnify  defendant  for  "  all  dam- 
ages that  may  be  sustained  by  reason  of  such  injunction,"  on  the 
ground  it  would  seem  that  the  counsel  fees  paid  by  the  defendant 
are  not  deemed  the  direct  consequences  of  the  injunction,  but  aa 

1,3.   Nimoeks  v.   Welles,    42    Kan.  reasons  of  the   rule  are  thus  given: 

39,  21  Pac.  787.  "  There  is  no  fixed  standard  by  which 

14.  N.,  as  county  attorney,  pros-  the  honorarium  can  be  measured, 
ecuted  J.,  who  was  convicted  of  forg-  Some  counsel  demand  much  more 
ery,  and  adjudged  to  pay  the  costs  than  others.  Some  clients  are 
of  the  action.  Afterwards,  J.'s  prop-  willing  to  pay  more  than  others, 
erty  was  levied  on  by  the  aheriif,  More  counsel  may  be  employed 
when  J.  obtained  an  injunction  than  are  necessary.  When  both 
against  him.  The  sheriff  employed  client  and  cou  :s?l  know  that  the 
N.  as  his  attorney,  by  whose  efforts  fees  are  to  be  paid  by  the  other  party 
the  injunction  was  dissolved.  He  as-  there  is  danger  of  abuse.  A  refer- 
signed  the  injunction  undertaking  to  ence  to  a  master  or  an  issue  to  a 
N.,  as  payment  for  his  services.  Held,  jury  might  be  necessary  to  ascertain 
that  N.  could  recover  of  the  obligors  the  proper  amount  and  this  grafted 
of  the  bond  what  his  services  were  litigation  might  possibly  be  more  ani- 
reasonably  worth,  under  his  employ-  mated  and  protracted  than  that  in 
ment  by  the  sheriff,  it  not  appearing  the  original  cause."  See,  also, 
that  he  was  then  county  attorney.  Arcambel  v.  Wiseman,  3  Dall.  306,  1 
Nimoeks  v.  Welles,  42  Kan.  39,  21  L.Ed.  613;  National  Society  v.  Amer- 
Pac.  787.  ican  Surety  Co.,  56  Misc.  R.  (N.  Y.) 

15.  Oelrichs    v.    Spain,    15    Wall.  627,  107  N.  Y.  Supp.  820. 
(U.  S.)  211,  21  L.  Ed.  43,  where  the 

339 


§  210a  Damages. 

remote  and  speculative  damages.16  And  a  similar  rule  has  been  fol- 
lowed in  Maryland.17  In  Arkansas,  too,  counsel  fees  are  not 
allowed  as  damages,  and  the  courts  there  have  adopted  the  Federal 
rule.18  As  under  the  organic  law  of  Arizona  territory  its  courts 
must  follow  the  decisdons  of  the  Federal  Supreme  Court,  counsel 
fees  are  not  there  recoverable  as  damages.19  And  in  Oklahoma  the 
doctrine  of  the  United  States  Supreme  Court  is  followed.20  In 
Tennessee  also  it  is  held  that  counsel  fees  are  not  recoverable.21  In 
Texas,  expenses  of  the  litigation  in  procuring  the  dissolution  of  an 
injunction  which  are  not  taxable  costs  in  favor  of  defendant  arc  not 
recoverable  as  damages  in  an  action  on  the  bond,22  and  counsel  fees 
paid  for  procuring  the  dissolution  of  an  injunction  cannot  be  re- 
covered in  a  suit  on  the  injunction  bond.23 

§  210a.  Counsel  fees;  where  Federal  bond  sued  in  State  court. 
— The  fact  that  counsel  fees  are  not  allowed  as  damages  in  the 
Federal  courts,  in  actions  on  injunction  bonds-,  is  generally  held 
not  to  preclude  the  recovery  of  such  damages  in  an  action  in  a  State 
court  on  an  injunction  bond  given  in  a  Federal  court;  in  such  a 
•case  the  obligors  cannot  be  held  to  have  contracted  with  the  under- 

16.  Sensenig  v.  Perry,  113  Pa.  115,  United  States  Supreme  Court, not  only 
5  Atl.  11.  in   cases   involving  federal   questions, 

17.  Wood  v.  State,  66  Md.  61,  5  but  in  those  involving  tlie  construc- 
Atl.  476;  Wallia  v.  Dilley,  7  Md.  237.  tion  of  local  statutes,  and  sucli  court 

18.  Oliphint  v.  Mansfield,  36  Ark.  has  decided  that  counsel  fee9  are  not 
191.  See  Patton  v.  Garrett,  37  Ark.  recoverable  in  sucli  cases.  Oelrichs 
605.  v.  Spain,  15  Wall.  211,  21  L.  Ed.  43, 

19.  Comp.  Laws  1877,  §§  2547-  followed;  Richards  v.  Green  (Ariz.), 
2555,    provide  for    a   bond,   when    an  32  Pac.  266. 

injunction    is    applied    for,    that    the  20.  Frantz  v.  Taylor,  12  Okla.  39, 

plaintiff    will    pay    to    the   party    en-  69  Pac.  794. 

joined    such    damages,    not    exceeding  21.  Stringrfield  v.  Hirsch,  94  Tenn. 

an    amount   specified,   as   such    party  425,  29  S.  W.  609. 

may  sustain  by  reason  of  the  injunc-  22.  Galveston,  H.  &  S.  A.  Ry.  Co. 

tion   if  the  court  finally  decide  that  v.  Ware,  74  Tex.  47,  11  S.  W.  918. 

the  plaintiff  was  not  entitled  thereto.  23.  Jones  v.  Rosedale  St.   R.  Co., 

Held,   that   counsel    fees    are   not   re-  75  Tex.  382,  12  S.  W.  998;   Davis  v. 

coverable  on  such  bond,  since,  under  Same,    75    Tex.    381,    12    S.    W.    999, 

the  organic  law  of  Arizona,  its  courts  following   Galveston,   H.   &   S.   A.   R. 

must    follow    the    decisions    of    the  Co.  v.  Ware,  74  Tex.  47, 11  S.  W.  918. 

340 


Damages. 


210b 


standing  that  a  suit  would  be  brought  on  the  bond,  if  at  all,  in  a 
Federal  court,  and  that  their  liability  would  be  determined  accord- 
ing to  the  view  which  that  court  might  take  of  the  law.24  But  in 
a  case  in  New  York  it  is  decided  that  in  an  action  brought  in  a 
State  court  upon  an  injunction  bond  given  in  a  United  States  court, 
the  rule  of  the  Federal  court  prevails  and  counsel  fees  are  not  ad- 
missible as  an  clement  of  damages.25 

§  210b.  When  injunction  expenses  blended  with  those  of  suit. 

— When  the  legal  expenses  of  procuring  a  dissolution  of  an  injunc- 
tion are  so  blended  with  those  of  the  suit  that  the  court  cannot 
separate  them,  they  will  be  allowed  in  some  jurisdictions  as  dam- 
ages caused  by  the  injunction.26  But  such  expenses  are  not  allowed 
as  damages  caused  by  the  injunction,  where  there  was  an  agree- 


24.  Mitchell  v.  Hawley,  79  Cal. 
301,  21  Pac.  833;  Tullock  v.  Mulvane, 
61  Kan.  650,  60  Pac.  749;  Mulvane  v. 
Tullock,  58  Kan.  622,  50  Pac.  897; 
Wash  v.  Lackland,  8  Mo.  App.  122. 

In  an  action  in  a  court  of  Louisi- 
ana, on  a  bonl  for  an  injunction,  is- 
sued by  order  of  a  federal  court  in  a 
chancery  suit,  condit  ontd  to  secure 
defendant  in  such  suit  against  all 
damages  which  he  may  suffer  from 
tne  injunction,  in  case  the  same  may 
De  decided  to  have  been  wrongfully 
issued,  counsel  fees,  incurred  in  ob- 
taining the  dissolution  of  such  in- 
junction, may  be  recovered  as  an  ele- 
ment of  the  damages  contemplated. 
Aiken  v.  Leathers,  40  La.  Ann.  23, 
3  So.  357,  37  La.  Ann.  482. 

25.  National  Society  v.  American 
Surety  Co.,  56  Misc.  R.  (N.  Y.)  027, 
107  N.  Y.  Supp.  820,  citing  Tulluck 
v.  Mulvane.  184  U.  S.  497,  22  S.  Ct. 
372,  46  L.  Ed.  657;  Missouri,  K.  & 
T.  R.  Co.  v.  Elliott.  184  U.  S.  530. 
22  S.  Ct.  446,  46  L.  Ed.  673. 

26.  Alliance  Trust  Co.  v.  Stewart, 
115  Mo.  236,  21  S.  W.  793,  per  Mac- 


farland,  J.:  "Objection  is  made  to 
the  expense  of  attending  to  taking 
the  deposition  of  defendant  Bogarte 
in  Indiana,  on  the  ground  that  the 
deposition  was  intended  to  be  used  as 
evidence  in  the  principal  case,  and 
not  in  the  matter  of  the  injunction. 
The  matters  connected  with  the  prin- 
cipal case  and  those  relating  to  the 
injunction  are  so  blended  in  this  de- 
position that  we  are  unable  to  sep- 
arate them.  The  expense  of  going  to 
Indiana  was  the  same,  regardless  of 
how  small  a  part  of  the  deposition 
may  have  had  a  bearing  upon  the 
question  of  a  dissolution  of  the  in- 
junction, and  we  think  that  item  of 
damage  properly  allowed.  Ham- 
merslough  v.  Building  Ass'n.  79  Mo. 
81;  Holloway  v.  Holloway,  103  Mo. 
274,  284,  15  S.  VV.  530. 

In  Missouri  it  is  held  that  it  is 
the  law  of  that  State  that  attorney's 
fees  may  be  recovered  in  an  action 
on  the  injunction  bond.  Shores  v. 
Shores.  34  Mo.  App.  208;  Hannibal  & 
St.  J.  R.  Co.  v.  Shepley,  1  Mo.  App. 
254. 


341 


§§  211,  211a  Damages. 

ment  to  pay  a  gross  sum  for  services  in  the  entire  litigation,  and 
there  are  no  distinct  charges  for  services  in  procuring  the  dissolu- 
tion, and  no  evidence  of  the  value  of  such  services.27  And  where 
plaintiff  obtained  an  injunction,  which  was  dissolved  and  he  ob- 
tained leave  to  discontinue,  and  an  extra  allowance  was  awarded 
to  defendant  it  was  held,  that,  in  computing  defendant's  damages 
on  the  injunction  bond,  the  extra  allowance  was  not  to  be  included.28 

§  211.  Costs  of  reference  as  damages. — Upon  a  reference  to 
ascertain  the  damages  sustained  by  a  party  in  consequence  of  an 
injunction  restraining  him  in  the  exercise  of  a  legal  right,  it  is 
proper  to  allow  as  part  of  the  damages  the  expenses  reasonably 
incurred  upon  the  reference.29  But  an  allowance  for  referee's  fees 
and  for  disbursements  in  excess  of  the  amount  specific  d  in  the 
injunction  bond  is  error.30  "Where  tie  injunction  is  temporary  and 
there  is  no  prayer  for  its  continuance  as  part  of  the  final  relief 
sought  in  the  action,  and  defendant  is  unsuccessful  in  resisting  the 
allowance  of  the  injunction,  the  expenses  of  the  reference  ordered 
on  defendant's  motion  to  ascertain  the  damages  by  reason  of  the 
injunction  are  not  to  be  allowed  as  damages.31 

§211a.  Assessment  of  damages;  generally. — In  the  absence 
of  legislative  authority  a  court  of  equity  will  not  upon  dissolving 
an  injunction,  enforce  the  payment  of  damages  in  the  original 
cause,  but  will  remit  the  parties  to  their  action  upon  the  bond  or 


27.  Bustamente  v.  Stewart,  55  Cal.  Co.,  50  N.  Y.  282.     And  defendant's 
U5  counsel  fees  on  such  a  reference  may 

28.  Howell    v.     Miller,      12    Daly  be  allowed  as  damages.     Manufacture 
(N.  Y.).  277.  ers'>  °tc-    Hank  v.  Folk,  50  N.  Y.  St. 

29.  Holcomb   v.    Rice.    110    N.    Y.  Rep.  802,  806. 

598,   23    N.   E.    1112,   where   in    pro  30.  Lawton  v.  Green,  64  N.  Y.  32(1. 

eeedings   to   assess    defendant's   dam-  31.  Randall  v.  Carpenter,  88  N.  Y. 

ages  the  referee's  and  stenographer's  293;  and  if  the  reference  is  not  sua- 

fees,  amounting  to  $381.  were  held  to  tained  the  expenses  thereof  are  not  to 

be  properly  allowed.     See.  also    Aid  be    allowed    as    part    of    defendant's 

rich  v.  Reynolds,  1  Barb.  Ch.  (N.  Y.)  damages.     Manufacturers',  etc.,  Bank 

613;     Andrews   v.   Ulenvi'b    Woolen  v.  Folk.  50  N.  Y.  St.  Rep.  802. 


!42 


Damages.  §  212 

action  at  common  law.32  In  some  States  a  provision  is  made  by 
statute  for  the  assessment  of  damages  by  the  court.  So  by  an  earlv 
statute  in  Texas  it  was  provided  that  if,  upon  the  dissolution  of  an 
injunction,  the  court  was  satisfied  that  it  was  obtained  for  the  pur- 
pose of  delay  the  court  might,  where  the  collection  of  money  had 
been  enjoined,  assess  damages  at  ten  per  cent,  on  the  amount 
released  by  the  dissolution  of  the  injunction.33  Where  a  statute 
provides  for  the  assessment  of  damages  at-  a  certain  per  cent,  on 
the  judgment  enjoined  the  assessment  should  not  be  on  the  amount 
of  the  whole  judgment  where  the  defendant  acknowledges  a  credit.34 
A  statutory  or  Code  provision  authorizing  an  award  of  damages 
by  the  court  on  the  dissolution  of  an  injunction  does  not  operate 
to  exclude  the  right  before  recognized  to  sue  on  the  injunction  bond 
and  if  the  damages  are  not  so  assessed,  an  action  may  be  brought 
on  tho  bond.3*  In  a  proceeding  to  assess  the  damages  sustained 
by  reason  of  an  injunction  the  parties  are  estopped  from  litigating 
a  question  which  was  determined  by  the  judgment  in  the  action 
in  which  the  injunction  was  granted.36  Again,  a  court  of  equity 
having  acquired  jurisdiction  to  reform  and  correct  an  injunction 
bond  has  also  jurisdiction  to  enforce  the  bond  by  assessing  the 
damages  occasioned  by  reason  of  the  injunction.  This  doctrine 
is  founded  upon  tho  well  settled  rule  that  when  a  court  of  equity 
has  jurisdiction  of  a  cause  for  one  purpose  it  will  retain  such  juris- 
diction for  all  purposes.37 

§  212.  Assessing  damages  in  Kentucky;  Alabama;  Iowa;  Mis- 
sissippi;  Missouri. — In  Kentucky  it  is  decided  that  it  is  only 

32.  Greer  v.  Stewart,  48  Ark.  21.  bond,  or  at  common  law. 

24,  2  S.  W.  251.     Per  Battle,  J.     In  33.  Gault  v.  Goldthwaite,  34  Tex. 

this  case  it  was  held  that  the  dam-  104. 

ages  resulting  from  a  temporary  in  34.  Noland    v.    Richards,    1    J     J. 

junction,     restraining     a      defendant  Marsh.    (Ky. )    582. 

from  interfering  with  the  possession  35.  Barber  v.  Levy,  73  Miss.  484, 

of  a  plaintiff,  his  tenants  and  labor-  18  So.  797. 

ers    in  the  renting  and  cultivation  of  36.  O'Connor     v.     New     York     & 

a   farm    will  not  be  assessed  by  the  Yonkers   L.    I.    Co.,   8   Misc.    R.    (N. 

chancellor  on  the  dissolution  of  such  Y.)    243. 

an  injunction;  but  the  court  will  re-  37.  Keith   v.   Henkleman,    173   III. 

mit  the  parties  to  their  action  on  the  137,  50  N.  E.  692. 

343 


§  212  Damages. 

where  proceedings  on  a  judgment  have  been  enjoined,  that  the 
court,  upon  the  dissolution  of  the  injunction,  has  power  to  assess 
the  damages  and  render  judgment  for  them;  in  all  other  cases  the 
remedy  is  on  the  bond."  The  Civil  Code  of  Kentucky,  §  295, 
provides  that  on  the  dissolution  of  an  injunction  to  stay  proceed- 
ings under  a  judgment,  the  damages  shall  be  assessed  by  the  court, 
and  that,  if  the  delivery  of  property  has  been  delayed  by  the  in- 
junction, the  value  of  the  rent,  use,  or  hire  shall  be  assessed.  This 
remedy  by  assessment  is  exclusive  of  all  other  remedies.  And  the 
above  cited  section  does  not  apply  to  splitting  of  actions,  so  as  to 
recover  one  set  of  damages  by  assessment  by  the  court,  and  another 
by  an  action  on  the  bond.39  And  under  ihe  Kentucky  Code  it  has 
also  been  decided  that  where  an  injunction  to  restrain  the  enforce- 
ment of  a  judgment  pending  a  motion  for  a  new  trial  is  dissolved 
the  damages  to  be  assessed  are  within  the  discretion  of  the  trial 
court  up  to  the  per  cent,  provided  for  by  law  on  the  amount 
enjoined.40  In  Alabama,  when  the  chancellor  dissolves  an  inter- 
locutory injunction  by  a  dismissal  of  the  injunction  bill  his  juris- 
diction ceases  and  the  measure  of  defendant's  damages  caused  by 
the  injunction  belongs  to  another  forum.41  In  an  earlier  case  in 
this  State  it  was  held  that  where  the  answer  is  a  complete  denial  of 
a  bill  upon  which  an  injunction  issued,  the  bill,  if  wanting  in 
equity,  may,  not  only  be  dismissed,  but  the  damages  prescribed 
by  statute  may  be  imposed,  upon  the  ground  "  that  the  injunction 

38.  Alexander  v.  Gish,  88  Ky.  13,       Rep.  505,  41  S.  W.  8;  Ky.  Civ.  Code, 
18,  9  S.  W.  801;   Logsden  v.  Willis,       §  518,  subsec.  7. 

14  Bush  (Ky.).  183;  Rankin  v.  Estes,  41.  Bogacki  v.  Welch,  94  Ala.  429, 

13  Bush   (Ky.),  428.  10  So.  330.     In  Zeigler  v.  David.  23 

39.  Hayden  v.  Phillips.  89  Ky.   1,  Ala.    127.   it  was  held  that  a   party 
11  S.  W.  951.  against  whom  an  injunction  or  pro- 

Where    the    conditions   of   the  cess  of  seizure  has  been  obtained  in  a  | 

injunction  bond  are  sufficient  to  chancery  suit,  and  who  has  been   in-  : 

cover    any    damages    for    -waste  jured  in  consequence,   may  afier   the 

committed  during  the  pendency  of  the  dismissal    of    the    bill    for    want    of  ! 

injunction,  the   inquiry  of  the  court  prosecution,  bring  his  action  at  law 

on  the  assessment  of  damages  should  without   permission   of   the   chancery 

be  extended  to  any  waste  or  destruc-  court  to  recover  on  the  bond  of  in- 

tion  of  the  property.    Hayden  v.  Phil-  demnity    required    by    the    fiat    as    a 

lips,  89  Ky.  1.  11  S.  W.  951.  prerequisite  to  obtaining  the  process. 

40.  Combs  v.  Bentley,  19  Ky.  Law. 

344 


Damages.  §  213 

was  obtained  for  delay  "  within  the  meaning  of  a  statute  providing 
for  the  assessment  of  damages  in  such  a  case.42    In  a  case  in  Iowa 
the  court  declares  that  damages  consequential  in  their  nature  which 
demand  for  their  determination  the  examination  of  evidence,  ought 
not  to  be  recovered  in  any  other  way  than  by  proceedings  wherein 
process  is  required,  issues  are  formed  and  evidence  introduced  as 
demanded  by  the  law  regulating  the  action  for  the  recovery  of 
damages  in  other  cases.     The  court,  however,  said  that  it  did  not 
decide  the  question  whether  those  damages  which  are  the  imme- 
diate and  necessary  result  of  the  allowance  of  the  writ  could  be 
recovered  by  summary  proceedings  upon  motion.43    In  Mississippi 
on  the  dissolution  of  an  injunction  the  damages  may  be  assessed  in 
the  injunction  suit,  or  they  may  be  recovered  in  an  action  on  the 
injunction  bond,  if  not  so  assessed.44    In  Missouri  upon  the  dissolu- 
tion of  an  injunction  damages  are  to  be  assessed  by  the  jury  or  if 
neither  party  require  a  jury  by  the  court.45    Under  such  a  statute 
a  judge  errs  in  assessing  the  damages  on  the  dissolution  of  an  in- 
junction without  a  jury,  where  the  plaintiffs  demand  one.46    And 
it  has  been  decided  that  where  an  appeal  has  been  taken  from  a 
final  judgment  dissolving  the  injunction  and  dismissing  the  bill, 
and  the  judgment  is  affirmed,  the  defendant,  may  upon  proper 
notice  to  the  plaintiff  and  his  securities  have  his  damages  assessed 
on  the  bond  by  the  court.47 

§  213.  In  Maine  and  Minnesota. — In  Minnesota  it  has  been 
decided  that  after  judgment  determining  that  the  plaintiff  was  not 
entitled  to  an  injunction,  the  damages  thereby  caused  may  either 
be  assessed  in  a  summary  manner  in  the  injunction  suit  as  pro- 
vided by  statute,  or  they  may  be  ascertained  in  an  action  therefor 
on  the  bond,  which  mode  is  preferred;  but  even  though  they  be 
assessed  in  the  injunction  suit,  they  can  be  recovered,  if  disputed, 

42.   Mallory   v.   Matlock,    10   Ala.       110    Mo.    App.,    Mo.    Rev.    St.    1899, 

695.  §  3C39- 

4,3.  Taylor  v.  Brownfield,  41  Iowa,  46.   Home  Mut.   Ins.   Co.   v.   Bau- 

264.    Per  Beck,  J.  man,  14  Mo.  74. 

44.  Davis  v.  Hart,  66  Miss.  642,  47.  Wabash  R.  R.  Co.  v.  Sweet, 
6  So.  318;  Code,  §  1919.  110  Mo.  App.  100. 

45.  Wabash    R.    R.    Co.   v.   Sweet, 

345 


§214 


Damages. 


only  in  an  action  on  the  bond.48  In  Maine,  damages  and  costs  shall 
be  awarded  by  the  court  on  motion  against  the  complainant,  "  if 
he  is  finally  found  not  entitled  to  the  injunction,"  but  if  not  so 
awarded  before  final  decree,  they  may  be  determined  in  a  suit  on 
the  bond.49 

§  214.  Assessment  of  damages  in  Illinois ;  suggestion  when 
required. — Under  the  Illinois  statute  of  1845,  which  provides  that 
where  an  injunction  to  restrain  the  collection  of  a  judgment  is 
dissolved  in  whole  or  in  part,  the  complainant  shall  pay,  exclusive 
of  legal  interest  and  costs,  such  damages  as  the  court  shall  award, 
not  exceeding  ten  per  cent,  on  such  part  as  may  be  released  from 
the  injunction,  damages  may  be  allowed  without  any  suggestion 
of  damages  and  even  without  evidence  as  the  amount  of  the  judg- 
ment enjoined  was  apparent  from  the  papers,50  but  in  such  a  case 
it  is  error  to  allow  damages  in  excess  of  ten  per  cent,  on  the  amount 
of  the  judgment.51    In  the  class  of  cases  provided  for  by  the  act  of 


48.  Hayden  v.  Keith,  32  Minn. 
277,  per  Vanderburgh,  J.:  "The 
statute  provides  that  the  damages 
may  be  ascertained  by  reference  or 
otherwise,  as  the  court  shall  order. 
After  judgment  determining  that  the 
plaintiff  is  not  entitled  to  the  writ, 
and  not  before,  the  party  defendant  is 
entitled  to  apply  for  a  reference  to 
assess  the  amount  of  his  damages  in 
a  summary  way  in  the  same  action. 
The  inquiry  upon  the  reference  only 
concerns  the  amount  of  the  damages, 
the  right  to  recover  them,  if  disputed, 
must  be  determined  in  an  action  upon 
the  undertaking.  Carpenter  v. 
Wright,  4  Bosw.  655 ;  Palmer  v  Foley, 
2  Abb.  N.  C.  191.  The  parties  sign- 
ing the  bond  contract  with  reference 
to  the  statute,  which  provides  the 
manner  in  which  the  damages  may 
be  ascertained.  They  are  therefore 
bound  by  it  as  a  part  of  the  contract. 
Methodist  Churches  v.  Rarker,  18  N. 
Y.  463,  466;  Wilde  v.  Joel,  15  How. 
Pr.  320,  327.     But  w<*  do  not  think 


this  remedy  to  be  held  exclusive;  and 
whatever  may  have  been  the  original 
practice  under  the  chancery  rule,  we 
see  no  good  reason  why  the  parties 
may  not  waive  this  method  of  as- 
sessing  the  damages  and  have  the 
same  ascertained  directly  in  the  suit 
upon  the  bond.  This  is  the  course 
more  commonly  pursued  in  this  State, 
we  think,  and  is  convenient  in  prac- 
tice and  just  to  all  parties.  We  do 
not  undertake  to  say,  however,  that 
the  court  might  not  order  the  dam- 
ages to  be  assessed  by  a  reference 
also  in  such  suit.  But  ordinarily 
there  would  seem  to  be  no  good  rea- 
son why  the  amount  of  damages  and 
right  of  recovery  on  the  bond  should 
not  be  determined  together  by  a  jury, 
as  in  other  cases." 

49.  L.  1881,  ch.  68,  §  22. 

50.  Shaffer  v.  Sutton,  49  111.  506; 
Dunn  v.  Wilkinson,  26  111.  App.  26. 

51.  Camp   v.    Bryan,   84   111.  250; 
111.  Rev.  St.  1874,  p.  579. 


:4fi 


Damages.  §  214 

1861,  suggestions  in  writing  of  the  nature  and  amount  of  damages 
must  be  filed  by  the  party  claiming  damages  and  assessed  by  the 
court,  on  sufficient  evidence.52  On  the  dissolution  of  the  injunction, 
the  defendant  may  file  his  suggestion  of  damages  and  present  testi- 
mony in  proof  thereof,  and  the  court  may  retain  the  case  for  the 
assessment  of  damages,  though  the  complainant  dismiss  his  bill  by 
leave  of  court  without  prejudice  and  at  his  costs.53  This  proceed- 
ing, for  the  assessment  of  damages  on  suggestion,  follows  as  a  part 
of  the  original  proceeding,  upon  the  dismissal  of  the  bill  and  the 
dissolution  of  the  injunction.54  A  suggestion  of  damages  in  such 
a  case  is  held  to  take  the  place  of  a  declaration  and  it  should  be 
so  framed  as  to  give  the  opposite  party  information  with  reasonable 
certainty  of  the  nature  and  amount  of  the  damages  claimed.55  And 
it  is  decided  that  the  court  may  grant  leave  to  the  defendant  to  file 
suggestion  of  damages,  and  for  any  reason  satisfactory  to  the  court 
may  extend  the  time  in  which  to  file  the  same,  which  may  be  done 
by  entry  of  the  order  and  continuing  the  case.  After  having 
granted  such  leave  the  court  does  not  lose  jurisdiction  by  subse- 
quent continuances.56  Where  damages  are  assessed  under  an  act 
requiring  suggestions  in  writing  to  be  filed,  the  court  is  required  to 
hear  evidence  in  respect  thereof,  and  such  evidence  must  be  pre- 
served in  the  record  to  support  the  decree  awarding  damages.  And 
in  such  a  case  there  is  held  to  be  no  presumption  to  aid  the  omission 
of  the  evidence  from  the  record.57  Under  the  Illinois  act  of  1801 
there  could  not  be  a  recovery  of  damages  in  an  action  on  the  bond, 
unless  the  damages  had  been  assessed  by  the  court  at  the  time  ihe 
injunction  was  dissolved.58     Prior  to  that  enactment  it  was  not 

52.  Forth  v.  Town  of  Xenia,  54  111.  Howard  v.  Austin  12  Til.  Ann.  055; 
210.  See  Kohlsaat  v.  Crate,  144  111.  Winkler  v.  Winkler,  40  111.  170;  Stin- 
14    32  N.  E.  481.  nett  v.  Wilson,  19  111.  App.  38. 

53.  Cummings  v.  Mugge,  94  111.  56.  Poyer  v.  Village  of  Des 
180.  Plaines,  123  111.  Ill,  13  N.  E.  819,  5 

54.  Holmes  v.  Stateler.  57  111.  209,  Am.  St.  Rep.  494. 

hold'rg  that  if  either  party  desires  a  57.  Forth   v.    Town   of   Xenia.    54 

continuance,  he  should  show  grounds  111.   210. 

for  it  in  the  ustnl  mo^e   hv  affidavit.  58.  Brownfield    v.    Brownfield,   58 

55.  Independent     Medical     College  111.   152. 
v.  Ziegler,   86   111.   App.    360;    citing 

347 


§215 


Damages. 


necessary  that  the  damages  should  have  been  first  assessed  at  the 
time  the  injunction  was  dissolved,  but  might  be  awarded  in  an 
action  for  damages  on  the  bond;59  and  it  would  seem  that  the 
statute  of  1874,  providing  that  "  a  failure  so  to  assess  damages 
shall  not  operate  as  a  bar  to  an  action  upon  the  injunction  bond," 
restored  the  old  rule.60  And  in  a  more  recent  case  it  is  decided 
that  failure  to  assess  damages  on  dissolution  of  an  injunction  in 
the  manner  provided  by  statute  in  Illinois61  does  not  bar  recovery 
on  the  bond.62 

§  215.  Continued  in  Illinois — The  statute  now  in  force  in 
Illinois  in  reference  to  the  assessment  of  damages  caused  by  the 
wrongful  suing  out  of  an  injunction,63  is  construed  to  give  the 
party  enjoined  the  right  to  have  his  damages  assessed  and  to  a 
decree  awarding  the  same  to  him,  wholly  irrespective  of  whether 
an  injunction  bond  has  been  given  or  not,  and  of  the  amount  of 
the  penalty  of  the  bond  if  a  bond  has  been  given.  It  is  held  that 
the  liability  of  a  party  wrongfully  suing  out  an  injunction  is  not 
created  by  the  bond  nor  measured  by  it,  but  that  the  office  of  the 
bond  is  only  to  secure  the  payment  of  damages  up  to  the  amount 


59.  Hibbard  v.  McKindley,  28  111. 
240. 

60.  Mix  v.  Vail.  86  111.  40.  44. 
The  Act  of  1874  providing  that 

a  failure  to  assess  damages  en  the 
dismissal  of  a  suit  where  an  injunc- 
tion is  granted  shall  not  operate  as 
a  bar  to  an  action  on  the  injunction 
bond,  only  applied  to  bonds  entered 
into  after  it  took  effect  and  had  no 
operation  as  to  bonds  entered  into  be- 
fore that  time,  although  the  dis- 
missal of  the  suit  might  be  subse- 
quent thereto.  Alwood  v.  Mansfield. 
81  111.  314.  See  Mix  v.  Vail,  86  111. 
40. 

61.  111.   Rev.    Stat.    1874,    p.    580; 
Injunction  Act   §  12. 

62.  Keith  v.  Henkleman,   173  111. 


137,  50  N.  E.  692. 

63.  111.  R.  S.  1891,  ch.  69.  §  12: 
"  In  all  cases  where  an  injunction  is 
dissolved  by  any  court  of  chancery  in 
this  State,  the  court,  after  dissolving 
such  injunction,  and  before  finally 
disposing  of  the  suit  upon  the  party 
claiming  damages  by  reason  of  such 
injunction  suggesting  in  writing  the 
nature  and  amount  thereof,  shall 
hear  evidence,  and  assess  such  dam- 
ages as  the  nature  of  the  case  may  re- 
quire and  to  equity  may  appertain 
to  the  party  damnified  by  such  in- 
junction, and  may  award  execution  to 
collect  the  same,  provided  a  failure 
so  to  assess  damages  shall  not  oper- 
ate as  a  bar  to  an  action  on  the  in- 
junction bond." 


348 


Damages. 


§216 


of  the  bond.64  But  on  the  dissolution  of  a  temporary  injunction, 
an  assessment  of  damages  in  defendant's  favor  is  premature  if 
complainant's  right  to  a  permanent  injunction  remains  undisposed 
of.65  The  dissolution  of  an  existing  injunction  for  want  of  a 
proper  bond  followed  by  an  immediate  order  for  a  new  injunction 
upon  the  filing  of  a  new  bond,  which  bond  is  filed,  is  not  such  a 
dissolution  as  is  contemplated  by  a  statute  in  regard  to  the  assess- 
ment of  damages  upon  the  dissolution  of  an  injunction.66 


§  216.  In  New  York  and  New  Hampshire. — In  New  York  the 
damages  caused  by  an  injunction  may  be  ascertained  and  deter- 
mined by  the  court  or  by  a  referee  appointed  by  the  court,  or  by 
a  writ  of  inquiry  or  otherwise  as  the  court  shall  direct;  and  the 
decision  of  the  court  as  to  such  damages  or  its  order  confirming 


64.  Kohlsaat  v.  Crate,  144  111.  14, 
32  N.  E.  481.  In  this  case  on  the 
dissolution  of  the  injunction  the  de- 
fendant nled  a  suggestion  of  damages, 
and  the  court  found  for  him  to  the 
amount  of  $2,227,  but  by  its  decree 
awarded  him  only  $500,  the  amount 
of  the  bond.  On  appeal  this  decree 
was  reversed  and  he  was  awarded 
the  full  amount  of  $2  227.  On  ap- 
peal to  the  Supreme  Court  the  Ap- 
pellate Court  was  sustained  and 
Bailey,  C.  J.,  referring  to  the  terms  of 
the  statute,  said:  "This  clearly  im- 
plies the  assessment  of  such  damages 
as  will  compensate  the  injured  party 
for  such  losses  and  expenses  as  are 
directly  occasioned  by  the  injunction. 
The  statute  does  not  require  that  in- 
junction bonds  shall  be  required  in 
all  cases,  as  section  9  authorizes  the 
judge  or  master  granting  an  injunc- 
tion to  order  its  issue  without  bond 
in  cases  when,  for  good  cause  shown, 
he  is  of  opinion  it  ought  to  be  granted 
without  bond.  In  only  one  class  of 
cases,  viz.,  where  an  injunction  is 
issued   to  enjoin  a  judgment  is  the 


amount  of  the  penalty  of  the  bond 
fixed  by  the  statute.  In  all  other 
cases  if  a  bond  is  required  the 
amount  of  the  penalty  is  discretion- 
ary with  the  judge  or  master  award- 
ing the  injunction.  The  absence  of  a 
bond  would  certainly  be  no  obstacle 
to  the  assessment  of  damages  under 
the  provisions  of  section  12  nor  are 
we  able  to  see  how  a  bond  with  an  in- 
adequate penalty  can  constitute  such 
obstacle.  The  office  of  the  bond  is 
not  to  create  or  measure  the  liability 
of  the  complainant  for  damages,  but 
to  secure  the  payment  of  such  dam- 
ages up  to  the  amount  of  the  penalty 
of  the  bond.  The  decisions  of  the 
courts  of  other  States  to  which  we 
are  referred,  seem  to  have  been  based 
upon  rules  of  law  essentially  different 
from  those  prescribed  by  our  stat- 
ute, and  therefore  cannot  control 
here."  See  also,  Walker  v.  Pritch- 
ard.  135  111.  103.  25  M.  E.  573. 

65.  Woerishoffer   v.   Lake   Erie   & 
W.  R.  Co.,  25  111.  App.  84. 

66.  Beauchamp  v.  Board  of  Super- 
visors, 45  111.  254. 


349 


§217  Damages. 

the  referee's  report  is  conclusive  as  to  the  amount  of  the  damages 
upon  all,  including  the  sureties,  who  have  executed  the  injunction 
bond,  unless  it  is  reversed  on  appeal.67  Counsel  fees  for  services 
in  procuring  a  dissolution  of  an  injunction  and  in  attending  a 
reference  to  assess  damages  consequent  thereon,  are  within  the 
language  of  an  undertaking  that  plaintiff  will  pay  to  defendant 
any  damages,  not  exceeding  a  sum  named,  "  that  he  may  sustain 
by  reason  of  such  injunction,  if  the  court  shall  finally  decide  the 
plaintiff  not  entitled  thereto;"68  but  counsel  fees  incurred  on  the 
trial  of  the  issue  in  the  action  are  not  allowable  as  damages  upon 
such  assessment,  unless  they  were  incurred  solely  or  principally 
in  consequence  of  the  injunction.69  In  New  Hampshire  it  is 
decided  that  in  an  action  on  an  injunction  bond  conditioned  "  to 
pay  all  such  damages  as  may  be  occasioned  to  the  adverse  party 
by  reason  of  the  injunction,"  the  question  as  to  what  damages 
were  caused  by  the  injunction  is  a  question  of  fact  to  be  determined 
at  the  trial  term  upon  which  the  court  cannot  pass  as  matter  of 
law.70 

§  217.  In  Louisiana. — In  Louisiana  it  has  been  determined  that 
damages  are  not  allowed  to  the  defendant  on  the  dissolution  of  the 
injunction  against  him,  except  in  cases  where  executions  upon 
money  judgments  are  enjoined;  the  defendant  must  bring  his 
action  for  such  damages  on  the  injunction  bond,71  it  being  con- 
sidered an  abuse  of  the  writ  of  injunction  for  a  party  to  restrain, 
merely  for  delay,  the  execution  of  a  money  judgment  against  him, 
for  which  he  should  be  mulcted  in  damages.72  Thus  damages  can- 
not be  awarded  in  the  same  judgment  as  dissolves  an  injunction 
to  restrain  the  collection  of  a  license  tax.73    When  a  writ  of  seizure 

67.  Code  Civ.  Pro.,  §  623 ;  Lawton  70.  Jackman  v.  Eastman,  62  N.  H. 
v.   Gre?n,   64   N.   Y.   326;    Methodist       273. 

Churches  v.  Barker.  18  N.  Y.  463.  71.  Green  v.  Reagan,  32  La.  Ann. 

68.  Newton  v.  Russell,  87  N.  Y.  974;  Morris  v.  Bienvenue  30  La. 
527.  531;  Rose  v.  Post,  56  N.  Y.  603.  Ann.  878;  Verges  v.  Gonzales,  33  La. 

69.  Hovey  v.   Rubber  Tip  Co..  57  Ann.  410. 

N.  Y.  119;  Disbrow  v.  uarcia,  52  N.  72.  Lambeth    v.    Sentell,     38     La. 

Y.  654;  Andrews  v.  Glenville  Woolen       Ann.  691. 

Co.,  50  N.  Y.  282.  73.  King    v.    Labranche,     35   La. 

Ann.   305. 

350 


Damages.  §  213 

and  sale  is  enjoined  and  the  injunction  afterwards  dissolved,  the 
seizing  creditor  cannot  obtain  his  damages  by  the  judgment  dis- 
solving the  injunction,  but  must  bring  his  action  on  the  bond.7* 
And  in  a  late  case  in  this  State  it  is  decided  that  the  plaintiffs 
having  acted  in  good  faith  in  taking  out  the  injunction  the  defend- 
ants are  not  entitled  to  damages  upon  the  dissolution  of  the  in- 
junction.75 And  in  another  case  it  is  also  decided  that  statutory 
damages  on  the  dissolution  of  an  injunction  will  not  be  allowed, 
where,  the  merits  not  having  been  gone  into,  the  court  can  not  say 
that  the  equitable  remedy  of  injunction  has  been  abused.76 

§  218.  Motion  to  assess  damages;  joinder  of  movants;  appor- 
tionment.— Under  the  Missouri  rule  that  where  an  obligation  has 
been  made  to  several  persons  jointly  all  the  obligees  must  join  in 
an  action  to  enforce  it,77  it.  has  been  held  that  a  motion  to  assess 
damages  on  an  injunction  bond  must  be  joined  in  by  all  the 
obligees,  or  good  cause  must  be  shown  for  the  non-jojnder  of  such 
as  are  omitted;  and  particularly  where  some  of  the  defendants  in 
the  injunction  suit  come  back  into  court  with  such  a  motion  after 
the  term  has  expired  at  which  the  final  decree  was  rendered.78 
But  where  sufficient  reason  exists  for  the  making  of  more  than  one 
motion  by  different  defendants  such  motions  should,  though  made 
at  different  times,  be  treated  as  one  motion  and  be  heard  at  the 
same  time  as  there  can  be  only  one  final  judgment.79  A  motion 
to  assess  damages  on  an  injunction  bond  may  be  made  after  the 
injunction  has  been  dissolved  and  the  bill  dismissed,  if  made 
before  the  term  has  lapsed.80     The  court  on  dissolving  the  tem- 

74.  Burgess  v.  Gordy,  32  La.  Ann.      78.  Ohnsorg    v.    Turner,    33    Mo. 
1296;  Dejean  v.  Hebert,  31  La.  Ann.       App.  486. 

729;   Cane  v.  Cawthon,  32  La.  Ann.  79.  August  Gast  Bank-Note  &  L. 

953.  Co.  v.  Fennimore  Ass'n,  79  Mo.  App. 

75.  Caillouet      &      Maginnis      v.       612. 

Coguenhem,   111  La.  60,  35  So.  385.  80.  Loehner  v.  Hill,   19  Mo.  App. 

76.  Speyrer  v.  Miller,  108  La.  204,  141,  per  Rombauer,  J.:  "The  mean- 
32  So.  524.  ing  of  the  statute  is  not  that  dam- 

77.  Ryan  v.  Riddle,  78  Mo.  521;  ages  must  be  assessed  instanter  when 
Henry  v.  Mt.  Pleasant,  70  Mo.  500;  the  injunction  is  dissolved,  but 
Rainey  v.  Smizer,  28  Mo.  310;  Clark  simply  that  the  motion  to  assess 
v.  Cable,  21  Mo.  223.  damages  shall   be   made,   before   the 

351 


§  219  Damages. 

porary  injunction  and  assessing  the  damages  on  the  injunction 
bond  may  apportion  the  same  to  the  several  parties  enjoined.81 
But  a  dismissal  of  a  suit  in  vacation,  by  order  of  plaintiff  to  the 
clerk,  has  no  effect  as  a  judgment  until  entered  of  record  by  the 
court  at  a  succeeding  term ;  and  such  a  dismissal  of  a  suit  in  which 
an  injunction  has  been  granted  does  not  prevent  the  assessment  of 
damages  on  the  injunction  bond  on  motion.82  In  North  Carolina 
after  a  voluntary  non-suit  has  been  taken  by  the  plaintiff  a  motion 
may  be  made  for  an  assessment  of  the  damages  resulting  from  the 
granting  of  the  injunction.83 

§  219.  Federal  practice  as  to  determining  damages. — A  Fed- 
eral court,  which,  on  granting  a  temporary  injunction,  requires 
the  giving  of  a  bond  for  possible  damages,  may,  on  dissolving  the 
injunction,  itself  decide  what  damages,  if  any,  should  be  paid; 
and  it  will  never  send  the  bond  to  another  jurisdiction  to  be 
sued  upon,  and  only  in  very  excEptional  cases  will  it  send  the 
matter  before  a  jury.  The  court  will  if  necessary  appoint,  a  special 
master  to  take  evidence  of  the  defendant's  damage  and  report  to 
the  court.84    Where  an  order  of  the  Federal  District  Court  requires, 

court  by  lapse  of  the  term,  has  lost  given  under  its  order,  or  it  can  de- 

the  power  to  entertain  a  motion  for  liver  the  bond  to  the  defendants  for 

that  purpose."  the    purpose    of     suit    thereon   in    a 

81.  Holloway  v.  Holloway,  103  court  of  law.  This  court  would  never 
Mo.  274,  2S4,  15  S.  W.  536.  send  the  bond  for  suit  in  another  jur- 

82.  Campbell  v.  Carroll,  35  Mo.  isdiction,  and  in  very  rare  cases 
App.  640.  would  it  send  the  bond  before  a  jury. 

83.  Nansemond  Timber  Co.  v.  The  suit,  from  its  inception  is  in 
Rountree,  122  N.  C.  45,  29  S.  E.  61.  this     court.       The     conduct     of     the 

84.  Coosaw  Mining  Co.  v.  Farm-  partes  is  always  under  its  super- 
ers  Min.  Co.,  51  Fed.  107,  per  Simon-  vision.  Tne  character  of  the  ques- 
ton,  J.:  "A  motion  is  now  made  tions  involved,  and  the  ease  or  diffi- 
•  that  the  bond  g  ven  under  the  order  culty  in  reaching  a  conclusion  upon 
cf  6th  March,  1891.  be  delivered  to  them,  can  nowhere  be  as  well  known 
defendants  to  bring  such  actions  un-  as  in  the  court  which  heard,  consiu- 
uer  the  conditions  thereof  as  they  ered,  and  decided  them.  The  court 
may  be  advised.'  There  can  be  no  also  can  determine  whe  her  any  fur- 
question  that  the  court  can  either  de-  ther  proceedings  are  necessary;  and 
cide  for  itfelf  what  damages,  if  any,  may  content  itself,  after  fixing  costs 
snould  be  g  ven  upon  the  dissolution  on  the  complainant  with  an  order 
of  an  injunction,  secured  by  a  bond  that  no  further  damages  can  be  re- 

352 


Damages.  §  220 

as  a  condition  of  maintaining  an  injunction,  that  plaintiffs  give 
bond  to  save  the  parties  harmless  from  the  effects  of  the  injunc- 
tion and  the  bond  is  conditioned  that  the  obligors  shall  pay  all  such 
damages  as  defendant  may  recover  against  them  in  case  it  shall  be 
decided  that  the  injunction  was  wrongfully  issued,  it  is  held 
that  the  bond  follows  the  order,  and  that,  construed  under  the 
rule  of  the  Federal  courts,  it  binds  the  obligors  for  damages  in- 
curred before  as  well  as  after  it  was  given.85  Under  the  Federal 
practice  obligors  may  be  bound  for  damages  incurred  before  as 
well  as  after  the  bond  was  given  ;86  but  this  is  not  the  rule  in  Cali- 
fornia.87 

§  220.  English  inquiry  as  to  damages. — In  England  it  is  dis- 
cretionary with  the  court  of  original  jurisdiction  whether  an  in- 
quiry as  to  damages  be  granted,  and  an  inquiry  will  not  be  granted 
in  every  case  in  which  the  defendant  may  have  sustained  some 
small  or  remote  damage  from  the  injunction.88  Thus,  where  the 
only  damage  alleged  was  that  the  defendant  had  agreed  to  let  part 
of  his  property  with  a  projected  new  building  to  a  tenant,  and 
was  prevented  doing  so  by  the  injunction,  but  it  did  not  appear 
that  the  interference  by  the  injunction  was  so  great  as  to  have 
entitled  the  intended  tenant  to  throw  up  the  agreement,  it  was 
held  that  an  inquiry  as  to  damages  ought  not  to  be  granted.89    So, 

covered  against    it.     Russell  v.  Far-  damage   as    they    may    claim,    with 

ley,   105  U.  S.  446;  26  L.  Ed.   1065.  leave  to  complainant  to  reply  thereto, 

In  the   present  case  I  think  it  best  if  it  be  so  advised,  and  that  the  testi- 

to  follow   the  course   finally  decided  mony    so    taken   be    reported   to   the 

upon   in  iSovello  v.   James,   5   DeG.,  court.     Let  J.  E.  Hagood  be  the  spec- 

M.  &  G.  876,  quoted  and  criticised  in  ial  master  in  this  behalf."     See,  also, 

Russell   v.    Farley.      I    do   not   wish,  Lehman  v.  McQuown,  31  Fed.  138. 
however,  to  decide  in  advance,  or  to  85.  Meyers    v.    Block,    120    U.    S- 

I  intimate  an  opinion  on    the  question  206,  7  Sup.  Ct.  525,  30  L.  Ed.  642. 
whether    further   damages   should  be  86.  Meyers    v.    Block,    120    U.    S 

allowed.     I  think  it  the  better  prac-  206,  7  Sup.  Ct.  525,  30  L.  Ed.  642. 
tice,    because    it    is    seldom    that    a  87.  Lambert    v.    Haskell,    80    Cal. 

chancellor  without   evidence  can   say  611,  22  Pac.  327. 
whether    or    not    a    party    has    been  88.  Kerr,  Injunctions,  638,  639. 


or  to  what  extent.     It  is  89.  Smith   v.    Day,   L.   R.  21    Ch. 

ordered  that  the  defendants  produce       D.  421. 
before    the    master   such    evidence   of 

353 
23 


§220 


Damages. 


too,  while  there  are  no  definite  limitations  of  the  time  within  which 
the  inquiry  should  be  applied  for,  yet,  ordinarily,  it  should  be 
made  either  when  the  injunction  is  dissolved  or  at  the  triai.90 
Master  of  the  Rolls  Jessel  was  inclined  to  the  opinion  that  an 
inquiry  to  ascertain  damages  should  not  be  granted  where  there 
has  been  no  misrepresentation  or  fault  on  the  part  of  plaintiff  in 
procuring  the  injunction,  but  it  had  issued  through  a  mistake  of 
the  court;  Lord  Justice  Cotton  dissented  from  this  opinion,91  and 
preferred  to  hold  with  Lord  Justices  Bruce  and  Turner,  that  an 
inquiry  as  to  damages  might  be  directed  where  the  injunction  had 
been  improperly  issued,  from  the  court  having  taken  a  wrong  view 
of  the  law,92  and  this  is  now  the  accepted  doctrine.93  The  court 
will  not  grant  an  inquiry  as  to  damages  where  it  can  satisfy  itself 
without  an  inquiry,  as,  for  instance,  where  the  damage  consists  of 
a  loss  of  interest  which  may  readily  be  computed  by  the 
court.94 


90.  Smith  v.  Day,  L.  R.  21  Ch. 
D.  421,  per  Jessel,  M.  R.:  "Having 
regard  to  the  decisions  we  are  not 
entitled  to  say  that  the  application 
for  an  inquiry  must  be  made  either 
when  the  injunction  is  dissolved  or 
at  the  trial.  One  of  these  must  be 
the  most  proper  time.  The  applica- 
tion may  be  made  when  the  injunc- 
tion is  dissolved,  but  if  made  then 
it  will  probably  be  ordered  to  stand 
over  till  the  trial.  If  made  by  mo- 
tion subsequently  to  the  trial,  the 
party  moving  is  subject  to  some  dis- 
advantage, for  thi  application  is  one 
which  should  be  made  speedily  and 
not  after  tue  court  has  forgotten  the 
circumstances.  After  a  lapse  of  time 
the  statement  of  counsel  is  not 
enough;  there  must  be  evidence  that 
damages  have  accrued.  In  Newby  v. 
Harrison,  3  DeG.,  F.  &  J.  287,  an 
inquiry  was  directed  after  four 
months,  and  I  do  not  say  that  special 
circumstances  might  not  induce  the 
court  to  allow  more,  but  had  it  not 


been  for  that  case  I  should  have 
thought  four  months  too  long.  In 
the  present  case  the  injunction  was 
dissolved  by  the  Court  of  Appeal  in 
February,  1880,  and  the  action  dis- 
missed in  June,  1881,  and  the  present 
application  (for  an  inquiry)  was  not 
made  till  February,  1882.  I  am  of 
opinion  that  the  time  is  too  long." 
In  Ex  parte  Hall,  L.  R.  23  Ch.  D. 
644,  652,  a  delay  of  four  years  was 
held  to  be  fatal  to  an  application  for 
an  inquiry  to  ascertain  damages,  and 
Bowen,  L.  J.,  thought  it  "  marvelous 
that  the  appellant  if  he  had  any  real 
claim  to  damages,  should  not  have 
brought  it  forward  before." 

91.  Smith  v.  Day,  L.  R.  21  Ch. 
D.  424,  429. 

92.  Novello  v.  James,  5  DeG.,  M. 
&   G.   876. 

93.  Griffith  v.  Blake,  L.  R.  27  Ch. 
D.  475;  Hunt  v.  Hunt,  54  L.  J.  Ch. 
289. 

94.  Graham  v.  Campbell,  L.  R.  7 
Ch.  D.  490. 


354 


Damages. 


§  221 


§  221.  Assessing  damages  on  partial  dissolution  of  injunction. 
— Under  the  Illinois  statute  referred  to  in  a  preceding  section  the 
court  of  chancery  may  assess  damages  upon  a  suggestion  thereof 
by  the  defendant  in  the  injunction  action,  though  the  injunction 
be  only  partially  dissolved;  for  if  a  person  is  wrongfully  enjoined 
from  doing  one  thing  which  he  has  a  right  to  do,  he  is  none  the  less 
injured  because  he  is  at  the  same  time  rightfully  enjoined  from 
doing  another  thing  which  he  has  no  right  to  do.95    But  upon  dis- 


95.  Walker  v.  Pritchard,  135  111. 
103.  25  N.  E.  573,  per  Magmder,  J.: 
"  Section  8  of  the  present  Injunction 
Act,  which  went  into  force  July  1, 
1874.  provides  in  the  same  language 
which  was  used  in  section  11  of  the 
Act  of  1845,  that  the  court  may 
award  damages  '  if  the  injunction  be 
dissolved  in  the  whole  or  in  part.' 
Section  8  of  the  present  Act,  as  was 
true  of  section  11  of  the  Act  of  1845, 
applies  only  to  injunctions  against 
judgments.  Section  12,  which  was 
lirst  enacted  in  1861,  was  designed  to 
extend  the  power  of  the  court  to 
award  damages  to  other  cases  than 
judgments.  Forth  v.  Town  of  Xenia, 
54  111.  210.  Said  section  12  author- 
izes the  court,  upon  the  suggestion  of 
damages  in  writing,  to  assess  the 
same  '  in  all  cases  where  an  injunc- 
tion is  dissolved.'  But  we  do  not 
think  that  this  language  was  in- 
tended to  limit  the  action  of  the  court 
to  cases  where  the  injunction  was 
wholly  dissolved.  As,  before  1861, 
damages  could  be  assessed  where  in- 
junctions, granted  in  other  cases  than 
judgments,  should  be  dissolved  either 
altogether,  or  only  partially.  It  was 
left  to  the  chancellor  to  award  such 
damages  as  the  case  might  require 
and  to  equity  might  appertain, 
whether  the  dissolution  was  in  whole 
or  in  part.  We  think  the  view  here 
taken  is  sustained  by  authority.  The 


question  has  never  been  directly  de- 
cided in  this  State,  but  the  right  to 
assess  damages  for  the  partial  disso- 
lution of  an  injunction  has  been  inci- 
dentally recognized.  In  Roberts  v. 
Fahs,  36  111.  268,  the  injunction  was 
against  tne  sheriff  from  selling,  under 
an  execution  which  he  had  levied,  a 
quantity  of  cord  wood  and  other 
property;  upon  fina  hearing  the  in- 
junction was  dissolved  as  to  the  sale 
of  cord-wood,  but  made  perpetual  as 
to  the  other  property  levied  upon; 
written  suggestions  of  damages  were 
filed;  it  was  there  held  that  it  was 
proper  to  allow  ten  per  cent,  on  the 
judgment  enjoined  as  the  proper 
measure  of  damages,  but  improper  to 
include  the  principal,  interest  and 
costs  of  the  judgment  in  the  amount 
of  the  damages  assessed.  In  Willits 
v.  Slocumb,  24  111.  App.  484,  a 
collector  of  taxes  was  enjoined  from 
collecting  State,  road,  bridge  and 
school  taxes  and  also  the  city  and 
bond  taxes  due  a  certain  municipal- 
ity. The  injunction  was  dissolved  as 
to  all  the  taxes  except  the  city  and 
bond  taxes,  and  sustained  as  to  the 
latter;  it  was  held  that  damages 
were  recoverable  on  the  ground  that 
the  matters  enjoined  were  separate 
and  distinct  claims.  So.  in  the  case 
at  bar  the  notes  as  to  which  the  in- 
junction has  been  dissolved  are  sep- 
arate and  distinct  claims  from  those 


355 


§  222  Damages. 

solution  of  an  injunction  restraining  the  prosecution  of  an  action 
at  law,  the  amount  sued  for  in  such  action  cannot  be  assessed  as 
damages,  though  the  defendant  in  that  action  has  become  insolvent 
pending  the  injunction,  since  the  rights  of  the  parties  should  be 
determined  in  the  law  court.96  Where  an  injunction  to  stay  the 
sale  of  any  particular  property  by  virtue  of  certain  levies  has  been 
dissolved  as  to  a  part  only,  and  continued  as  to  the  balance,  and 
the  property  released,  not  diminished  in  value  in  consequence  of 
the  injunction,  has  been  sold,  and  the  proceeds  of  sale  applied  on 
the  judgments  under  which  the  levies  were  made  it  is  decided  that 
no  decree  against  the  complainant  should  be  rendered,  on  account 
of  the  dissolution  of  the  injunction,  for  the  amount  of  the  judg- 
ment.*7 

§  222.  Reference  to  ascertain  damages. — A  reference  to  deter- 
mine the  amount  of  damages  sustained  by  an  injunction  which  has 
been  dissolved  will  not  be  granted  after  judgment  dismissing  the 
action  without  providing  therefor;  nor  will  the  case  be  reopened 
for  the  purpose  of  ordering  a  reference  to  ascertain  the  damages.98 
Where  an  undertaking  was  to  pay  defendant's  damages  "  by  reason 
of  the  injunction  if  the  court  should  finally  decide  that  plaintiff 
was  not  entitled  thereto,"  it  was  held  that  the  dissolution  of  the 

as  to  which  the  injunction  has  been  court  damages  could  have  been  as- 
made  perpetual.  In  Pierson  v.  Ellis,  sessed  under  the  Minnesota  statute 
46  Hun  (N.  Y.),  336,  the  defendant  on  the  partial  dissolution.  And  in 
was  enjoined  from  carrying  on  the  Rice  v.  Cook,  92  Cal.  144  28  Pac. 
livery  business  on  certain  premises.  219,  though  title  to  a  por'ion  of  the 
and  from  doing  a  number  of  other  land  was  decreed  in  plaintiff,  the 
acts;  the  injunction  was  sustained  as  condition  of  the  bond  was  broken, 
to  carrying  on  the  livery  business,  since,  if  the  injunction  was  wrong- 
but  dissolved  as  to  the  other  acts;  fully  issued  as  to  any  part  of  the 
damages  were  assessed  by  a  referee  land  and  was  dissolved  to  that  ex- 
as  to  the  acts  as  to  which  the  injunc-  tent,  defendant  would  be  entitled  to 
tion  was  dissolved,  and  the  same  such  damages  as  he  sustained  by  rea- 
were  allowed."     See,   also,   White  v.  son  thereof. 

Clay,  7  Leigh    (Va.),  68,  so  in  Rus-  96.  Walker  v.   Pntchard,   135   111. 

sell   v.   Farley,  105  U.  S.  433,  26  L.  103;   25  IS.  E.   573. 

Ed.    1060,    it   was    conceded    by    the  97.  Teaff  v.  Hewitt,  1  Ohio  St.  511. 

United  States  Supreme  Court  that  if  98.  Delafield   v.    Commercial    Tel. 

the  case  had  continued  in  the  State  Co.,  22  Abb.  N.  C.   (N.  Y.)   450. 

356 


Damages.  §  223 

injunction  on  the  defendant's  motion,  and  the  subsequent  dismissal 
of  the  action  for  want  of  prosecution,  was  a  breach  of  the  under- 
taking which  entitled  defendant  to  a  reference  to  assess  his  dam- 
ages." An  order  of  reference  to  compute  damages  cannot  be  made 
where  the  injunction  action  has  abated  by  reason  of  the  death  of 
defendant;1  or  where  the  preliminary  injunction  has  been  dis- 
solved for  a  cause  not  relating  to  the  merits  and  which  has  arisen 
since  the  granting;2  or  where  an  order  of  discontinuance  has  been 
entered  upon  the  defendant's  consent,  for  such  a  discontinuance 
or  dissolution  is  not  a  decision  of  the  court  that  the  plaintiff  was 
not  entitled  to  the  injunction.3  "Where  a  reference  is  made  for 
this  purpose  it  is  only  proper  to  take  into  consideration  in  estimat- 
ing the  damages  the  period  between  the  date  of  the  issuance  of  the 
injunction  and  that  of  its  dissolution.33. 


§  223.  Same  subject. — An  irregularity  in  prematurely  obtain- 
ing the  order  of  reference  as  to  damages  may  be  waived  by  the 
consent  of  parties  ;4  or  by  permitting  the  referee  to  proceed  without 
objection,  or  though  the  objection  has  been  taken,  if  -the  party 
objecting  does  not  withdraw  from  the  reference.5  The  proceed- 
ings under  the  order  of  reference  are  not  necessarily  governed  by 
the  strict  rules  which  govern  the  trial  of  issues;  the  court  may 
direct  the  evidence  taken  at  a  former  reference,  or  upon  the  trial 
even,  to  be  submitted  to  the  referee,  and  may  authorize  ex  -parte 
affidavits  to  be  read  before  him.6  The  referee  need  not  find  dam- 
ages for  defendant  in  the  absence  of  proof  thereof,  and  is  not 

99.  Kane  v.  Casgrain,  69  Wis.  430,  1.  Johnson    v.    Elwood.    82    N.    Y. 

34  N.  W.  241.     See,  also,  Dowling  v.  362. 

Polaek,  18  Cal.  625.  2.  Appollinaris    Co.    v.    Venable, 

The  volnntary  dismissal  after  136  N.  Y.  46,  32  N.  E.  555. 

answer,  of  an  injunction  bill,  shows  3.  Palmer  v.   Foley,  71  N.  Y.   106. 

presumptively    that   the   complainant  3a.   Collins    v.    Crownover    (Tenn. 

was  not  equitably  entitled  to  the  in-  Ch.  App.  1900.),  57  S.  W.  357. 

junction,  and   entitles   the  defendant  4.  Lawton  v.  Green,  64  N.  Y.  326. 

to  a  reference  to  ascertain  his  dam-  5.  Roberts  v.  White,  73  N.  Y.  375. 

ages  where  the  usual  bond  has  been  6.  Roberts  v.  White,  73  N.  Y.  375, 

given.       Mutual    Safety    Ins.    Co.    v.  379. 
Roberts,  4  Sandf.  Ch.   (N.  Y.)   592. 

357 


§§  224,  225  Damages. 

bound  to  allow  him  counsel  fees  where  there  is  no  proof  that  de- 
fendant has  either  paid  or  became  liable  for  such  fees.7  So,  too, 
the  referee  is  not  required  to  report  findings  of  fact  and  conclu- 
sions of  law  separately  ;8  but  his  report  will  not  be  confirmed  unless 
he  reports  the  damages  and  not  merely  the  facts  from  which  the 
damages  can  be  ascertained.9 

§  224.  Reference  in  Wisconsin. — In  Wisconsin,  under  a  statute 
and  practice  similar  to  that  in  New  York,  if  the  court  decides  that 
the  party  obtaining  a  preliminary  injunction  was  not  entitled  to 
it,  the  other  party  may  have  a  reference  to  assess  damages  sus- 
tained by  reason  of  the  injunction,10  and  an  order  vacating  a  pre- 
liminary injunction,  after  a  hearing  on  the  pleadings  and  affidavits, 
followed  by  a  dismissal  of  the  action,  for  want  of  prosecution,  is 
such  a  final  determination  as  warrants  an  order  to  assess  defend- 
ant's damages.11  An  order  of  reference  to  assess  the  damages 
caused  by  the  injunction  is  premature  if  made  before  the  court 
finally  decides  that  the  plaintiff  was  not  entitled  to  an  injunction ; 
but  if  it  is  finally  so  decided,  the  order  will  not  afterward  be 
reversed  on  appeal.12 

§  225.  Review  and  correction  of  referee's  report. — On  a  refer- 
ence to  ascertain  the  damages  caused  by  an  injunction  suspending 

7.  Packer  v.  Nevin,  67  N.  Y.  550.      Y. )  325.     We  can  see  no  objection  to 

8.  Matthews  v.  Murchison,  14  Abb.  the  practice,  and  such  is  the  obvious 
N.  C.   (N.  Y.)   512,  note.  intention  of  the  statute.     The  court, 

9.  Taaks  v.  Schmidt,  19  How.  Pr.  on  the  report  of  the  referee,  fixes  the 
(N.  Y.).  413.  amount  of  the  damages.     Here  there 

10.  Parish  v.  Reeve,  63  Wis.  315,  is  no  question  of  the  effect  of  the 
23  N.  W.  568,  per  Cole,  C.  J. :  "  It  order  on  the  sureties  in  the  under- 
appears  that  in  New  York,  under  a  taking  who  have  no  notice  of  the  pro- 
similar  statute,  the  practice  has  ob-  ceeding." 

tained,  after  a  hearing  and  rendition  11.  Avery  v.   Ryan,   74   Wis.   591, 

of  judgment  on  the  merits  in  favor  43   N.   W.   317.     See  State  v.   Hoef- 

of  the  party  enjoined,   that  he  may  linger,  31  Wis.  257. 

have  a  reference  to  assess  his  dam-  12.  Kane  v.  Casgrain,  69  Wis.  430, 

pges  sustained  by  the  injunction.  See  34   N.   W.   241.     See,   also,   Supreme 

Methodist  Churches  v.  Barker,  18  N.  Court,  I.  0.  of  F..  v.  Supreme  Court 

Y.  463;  Jordan  v.  Volkenning    72  N.  of  U.  O.  of  F.,  94  Wis.  234,  68  N.  W. 

Y.  300;  Musgrave  v.  Sherwood,  76  N.  1011. 
Y.  194;  Loomis  v.  Brown,  16  Barb.  (N. 

358 


Damages. 


§225 


defendant's  business  of  manufacturing  toys,  the  referee  allowed 
damages  sustained  by  loss  of  profits  based  on  testimony  that  the 
profits  of  the  business,  over  and  above  it3  expenses,  were  25  per 
cent.,  and  that  during  the  life  of  the  injunction,  defendant  was 
prevented  from  doing  a  certain  amount  of  work  in  gross,  on  orders 
received,  but  made  no  allowance  for  contingencies  of  business, 
uncertainty  of  sales,  and  bad  and  uncollectible  debts.  It  appeared 
that  the  company  which  had  theretofore  run  the  business  had  not 
paid  any  dividends  for  years,  and  had  become  insolvent.  The 
court  held  that  the  assessment  of  damages  should  be  set  aside.13 
In  proceeding  to  recover  damages  caused  by  the  injunction  just 
referred  to,  it.  appeared  that  the  factory  had  capacity  to  make  a 
certain  amount  of  goods.  It  was  held  by  the  court,  on  appeal. 
that  it  could  not  be  inferred  from  such  evidence  that  the  owner, 
during  the  operation  of  the  injunction,  would  have  received  orders 
of  that  amount,  and,  therefore,  that  a  loss  of  profits  thereon  could 
not  be  allowed  as  damages  caused  by  the  injunction.14 


13.  Manufacturers'    and    Traders' 
Bank  v.  Dare  Co.,  16  N.  Y.  Supp.  67. 

14.  Manufacturers',  etc.,  Bank  v. 
Folk,  50  N.  Y.  St.  Rep.  802,  806. 
The  court:  "The  referee  reported 
that  Abram  Folk  sustained  damages 
by  reason  of  the  injunction,  to  the 
amount  of  $3,740.66.  The  items 
found  by  him  seem  to  overrun  this 
sum,  and  it  is  not  exactly  apparent 
how  his  conclusion  was  reached.  The 
following  are  the  items  reported. 
Rent  paid  for  factory  while 

use  was  enjoined $    416.60 

Watchman   for   7   weeks,   at 

$12  per  week 84.00 

Keeping      horse,      use      re- 
strained          20.00 

Salary  of  manager,  7  weeks, 

at  $25  a  week 175.00 

Loss  of  wages  paid 25.00 

Defendant's  counsel   fees  on 

the  reference 250.00 

Orders   on    hand    when   in- 


junction  was    served   and 
received  during  its  contin- 
uance, $4,826.77. 
Ten  per  cent,  profit  thereon 

lost 482.67 


$1,453.33 

The  factory  had  capacity 
to  produce  toys  during  the  7 
weeks  the  injunction  was  in 
operation  of  the  value  of 
$17,500. 
Loss    of   profit   thereon,    10 

per  cent $1,750.00 

Injury  to  good  will 500.00 

Referee's  fees  on  first  refer- 
ence        120.00 

Counsel   fees  on  first  refer- 
ence         150.00 


$3,973.33 


"  Upon  an  examination  of  the  rec- 


359 


§§  226,  226a 


Damages. 


§  226.  Reference  in  case  of  appeal. — When  an  appeal  from  a 
judgment  for  the  defendant  has  been  taken,  an  order  of  reference 
to  ascertain  the  damages  should  not  be  granted  until  the  final 
determination  of  the  appeal.15  In  such  a  case,  the  defendant,  being 
secured  by  the  injunction  bond,  can  usually  suffer  no  loss  by  await- 
ing until  the  decision  of  the  appeal,  before  proceeding  to  assess  his 
damages.16 

§  226a.  Pleadings. — In  an  action  on  a  bond  in  which  the  sure- 
ties have  bound  themselves  to  pay  the  damages  which  may  be 
sustained  by  reason  of  the  injunction  it  is  only  necessary  to  allege 
that  damages  have  been  sustained  as  the  proximate  result  of  the 
injunction.17     And  where  plaintiff  was  enjoined  from  moving  a 


ord  we  think  the  evidence  was  suffi- 
cient to  sustain  the  first  seven  items, 
aggregating  $1,453.33,  but  that  it 
was  insufficient  to  sustain  the  last 
four  items.  It  cannot  be  fairly  in- 
ferred from  the  evidence  that  the  de- 
fendant, during  the  seven  weeks  he 
was  under  restraint,  would  have  re- 
ceived orders  for,  and  been  able  to 
manufacture  toys  to  the  value  of 
$17,500.  Nor  is  there  any  evidence 
that  he  lost  $500  by  the  injury  to 
good  will.  The  defendant  is  no  more 
entitled  to  recover  the  $270  paid  in 
the  first  reference,  which  was  not  sus- 
tained, than  he  would  have  been  to 
recover  counsel  fees  paid  in  an  un- 
successful attempt  to  have  procured 
the  injunction  to  be  vacated.  We 
think,  under  the  evidence,  that  the 
defendant's  damages  recoverable  on 
the  bond  are  $1,453.33." 

15.  Musgrave  v.  Sherwood,  76  N. 
Y.  194,  per  Curiam:  "The  plaintiff 
having  appealed,  and  executed  the 
proper  undertaking,  it  cannot  be 
claimed  that  there  has  been  a  final 
determination  of  the  cause.  Palmer 
v.  Foley,  71  N.  Y.  106.  None  of  the 
authorities   cited   by  the  appellant's 


counsel  held  that  when  an  appeal  has 
been  taken,  an  order  of  reference  may 
be  entered  to  assess  damages  arising 
from  an  injunction.  Methodist 
Churches  v.  Barker.  18  N.  Y.  463; 
Lawton  v.  Green,  64  N.  Y.  326;  Dis- 
brow  v.  Garcia,  52  N.  Y.  654;  Parke 
v.  Musgrove,  6  Hun  (N.  Y.),  223. 
Cases  may  arise  where  it  would  be 
the  duty  of  the  court  to  order  a 
reference.  But  any  general  rule  dif- 
ferent from  that  stated  would  lead 
to  great  inconvenience.  A  reference 
ordered  to  ascertain  the  amount  of 
damages  would  create  great  expense, 
and  be  of  no  avail,  if  the  judgment 
was  finally  reversed.  It  would,  in- 
deed, be  somewhat  unusual,  under  or- 
dinary circumstances,  that  the  exe- 
cution of  the  judgment  should  be 
stayed,  and  at  the  same  time  a  pro- 
ceeding going  on  for  the  assessment 
of  damages,  which  perhaps  might  be 
collected  pending  the  appeal,  or  if 
not  collected  and  the  judgment  was 
reversed,  the  proceeding  would  be  of 
no  avail.'' 

16.  Musgrave  v.  Sherwood,  76  N. 
Y.  194    196. 

17.  Jones   v.   Allen,    85    Fed.   523, 
29  C.  C.  A.  318. 


360 


Damages.  §  226b 

building  he  may  in  an  action  on  the  bond  recover  his  damage  under 
an  allegation  that  he  had  that  right,  and  was  enjoined  from  so  doing, 
without  alleging  ownership  or  right  therein.18  And  though  there 
is  no  direct  allegation  that  costs,  charges  and  expenses  were  neces 
sary  or  worth  the  amount  claimed,  yet  if  from  the  allegations  of 
the  petition  such  facts  may  reasonably  be  inferred  it  will  be  suffi- 
cient in  the  absence  of  direct  attack  by  motion  or  otherwise.19  It 
has  also  been  decided  that  the  expense  incurred  in  procuring  a 
dissolution  of  an  injunction  is  not  recoverable  by  the  defendant  in 
an  injunction  suit  who  moved  to  dissolve  the  injunction  upon- the 
filing  of  his  answer  which  alleged  that  he  did  not  desire  and  was 
not  intending  to  do  the  act  enjoined,  this  being  a  concession  that 
he  was  not  damaged  by  the  writ  and  that  he  would  not  have  been 
damaged  by  a  continuance  of  it  to  the  final  hearing.20  Again,  an 
injunction  against  a  partner  of  a  commercial  firm  has  the  effect 
of  enjoining  the  partnership  and  such  partnership  though  not 
made  a  party  defendant,  save  to  the  extent  that  the  partner  en- 
joined may  have  represented  the  firm,  has  a  right  of  action  to 
recover  damages  occasioned  by  the  injunction.21  But  although 
several  parties  whose  individual  lands  have  been  injured  by  a 
nuisance  may  unite  as  plaintiffs  in  an  action  to  abate  it,  they  can- 
not recover  in  that  action  the  damage  caused  to  each,  the  relief 
being  confined  to  the  abatement  of  the  nuisances  in  which  they 
have  a  common  interest.22 

§  226b.  Evidence  and  burden  of  proof. — Before  a  judgment 
can  be  given  upon  an  injunction  bond,  the  party  who  alleges  that 
he  has  sustained  damage  by  reason  of  the  issuance  of  the  injunc- 
tion, must  establish  the  quantum  of  damages  he  has  sustained.23 
So  upon  a  reference  to  ascertain  what,  if  any,  damages  defendants 

18.  Williams  v.  Ballinger,  125  21.  Dreus  v.  Williams,  50  La. 
Iowa,  410,  101  N.  W.  139.  Ann.  579,  23  So.  897. 

19.  Williams  v.  Ballinger,  125  22.  Burghen  v.  Erie  Railroad  Co., 
Iowa,  410,  101  N.  W.  139.  123  App.  Div.  (N.  Y.)  204,  108  N.  Y. 

20.  Bank  of  Monroe  v.  Gifford,   70  Supp.  311. 

Iowa,  580,  31  N.  W.  881.  23.  Hyman  v.  Devereux,  65  N.  C. 

588. 

361 


§  226c  Damages. 

have  sustained  in  consequence  of  an  injunction,  it  is  the  duty  of  the 
party  claiming  to  have  sustained  damages  to  establish  such  fact, 
and  the  amount  thereof,  by  satisfactory  proof.24  And  where  the 
court  has  power  to  assess  damages  upon  the  dissolution  of  an  in- 
junction it  is  essential  that  there  should  be  evidence  preserved  in 
the  record  to  support  the  decree  awarding  damages.25 

§  226c.  When  prescription  begins  to  run. — The  date  the  in- 
junction was  sued  out  is  held  not  to  be  the  date  from  which  pre- 
scription of  claims  for  damages  caused  by  continuing  acts  begins 
to  run.  The  prescription  begins  to  run  from  the  time  the  damage 
was  committed  by  the  continuing  acts,  and  not  from  the  date  of 
the  injunction.26 

24.  Dwight    v.    Northern    Indiana       citing  Forth  v.  Town  of  Xenia,  54  111. 
R.  R.  Co.,  54  Barb.   (N.  Y.)  271.  210. 

25.  Wilson  v.  Haecker,  85  111.  349;  26.  Dreus  v.  Williams,  50  La.  Ann. 

579,  23  So.  897. 


362 


Liability  of  Sureties.  §  227 


CHAPTER  VII. 

Liability  of  Sureties. 

SECTION  227.  Sureties'    liability   is    stricti   juris. 
227a.  Same  subject — Application  of  rule. 

228.  Same  subject  continued. 

229.  Same   subject — Bond  conditioned  to  pay  damages  sustained. 

230.  Enlarging  sureties'   liability   by  the   partien. 

231.  Extent  of  sureties'  liability. 

232.  Sureties'  liability  for  defendant's  loss  of  profits,  etc. 

233.  Sureties'  liability  on  joint  bonds. 

234.  Bonds  as  joint  or  several. 

235.  Sureties  when  bound  by  decree  though  not  parties. 

236.  Suing  principal  before  surety. 

237.  Release  of  surety — Defenses. 

238.  Sureties'   obligations   construed. 

239.  Same  subject. 

240.  Awarding  damages  against  sureties  in  original  action. 

241.  Same   subject — In  Arkansas. 

242.  Same  subject — In  Louisiana. 

243.  Mme  subject — In  Louisiana  continued. 

244.  Same  subject — In  New  York. 

245.  Same  subject — In  South  Carolina,  Missouri,  Texas. 


Section  227.  Sureties'  liability  is  stricti  juris. — The  liability  of 
a  surety  on  an  injunction  bond  must  be  strictly  construed,  and  he 
cannot  be  held  liable  beyond  the  precise  terms  of  his  undertaking.1 
His  liability  is  a  matter  of  strict  law  and  cannot  be  extended  by 
implication  or  intendment,3  but  is  limited  by  the  condition  of  the 
bond.4    Therefore,  where  the  court  on  a  subsequent  hearing  modi- 

1.  It  is  thoroughly  well  settled  3.  Wood    v.    Hollender,     84     Tex. 

that   sureties   are    entitled  to   stand  394,   19   S.  W.  551.     See,  also,   Fer- 

upon   the  strict  letter  of   their  con-  guson  v.  Tipton,  1  B.  Mon.  (Ky. )  28; 

tract,   and  that  their  obligation  can  Ashby  v.  Tureman,  3  Litt.  (Ky. )  6. 
not  be  added  to,  nor  indeed  changed  4.  Groye  v.  Bush,  86  Iowa.  94,  53 

by  either   party   to  the   suit  nor  by  N.   W.   88.      See   Columbus,   Hocking 

the  court  itself.     Tyler  Min.  Co.  v.  Valley  &  T.  R.  Co.  v.  Burke,  54  Ohio 

Last  Chance  Min.  Co.,  90  Fed.  15,  32  St.  98,  43  N.  E.  282,  32  L.  R.  A.  329. 
C.  C.  A.  498. 

363 


§  227a  Liability  of  Sureties. 

fies  a  restraining  order  by  permitting  the  doing  of  certain  acte 
prohibited  in  the  original  order  without  requiring  any  other  or 
further  bond,  it  does  not  impose  any  obligation  upon  the  sureties 
in  respect  thereto,  as  the  court  cannot  by  such  an  act  impose  an 
obligation  upon  the  sureties  beyond  the  terms  of  their  contract.6 
And  in  order  that  a  surety  should  be  liable  under  an  injunction 
bond  it  must  conform  in  terms  or  in  substance  to  the  statutory 
requirements.6  And  the  terms  of  an  undertaking  for  an  injunc- 
tion are  to  be  construed  with  reference  to  the  statutes  in  force  at 
the  time  it  was  given,  in  determining  the  liability  of  the  sureties.7 
It  is  not,  however,  meant  by  the  rule  that  the  liability  of  a  surety 
is  to  be  strictly  construed  and  not  extended  by  implication  that 
the  courts  in  endeavoring  to  ascertain  the  precise  terms  of  the 
contract  actually  made  by  a  surety,  may  not  resort  to  the  same 
aids  and  invoke  the  same  canons  of  interpretation  which  apply  in 
case  of  other  contracts.8  In  construing  an  injunction  bond  with 
reference  to  the  question  of  the  discharge  of  the  obligation  of  the 
surety,  the  court  will  be  guided  by  the  intention  of  the  parties  at 
the  time  the  bond  was  executed,  taking  into  consideration  the  cir- 
cumstances under  which  the  bill  was  filed  and  that  it  was  given  in 
a  judicial  proceeding,  as  a  necessary  step  to  obtain  the  injunction, 
and  to  indemnify  the  adverse  party  against  its  effects  and  opera- 
tion.9 And  it  has  been  decided  that  an  intention  on  the  part  of 
sureties  to  become  bound  without  the  signature  of  their  principal 
may  be  proven  by  evidence  dehors  the  bond.10 

§  227a.  Same  subject;  application  of  rule. — Where  the  under- 
taking was  that  the  sureties  would  pay  defendants  such  damages 
"  as  they  may  sustain  by  reason  of  the  injunction  if  the  court 
finally  decides  that  the  plaintiff  was  not  entitled  thereto,"  it  was 
held  that  a  dismissal  of  the  action  and  dissolution  of  the  injunc- 

5.  Tyler  Min.  Co.  v.  Last  Chance  8.  Shreffler  v.  Nadehoffer,  133  111. 
Min.  Co.,  90  Fed.  15,  32  C.  C.  A.  498.       536,  552,  25  N.  E.  630.  Per  Bailey,  J. 

6.  Palmer  v.  Foley,  71  N.  Y.  106,  See  §§  238,  239,  herein. 

110;  Bein  v.  Heath,  12  How.   (U.  S.)  9.  Levy  v.  Taylor,  24  Md.  282. 

168-  10.  Safranski    v.    St.    Paul,    Min- 

7.  Krug  v.  Bishop,  44  Ohio  St.  221,  neapolis  &  M.  R.  Co.,  72  Minn.  185, 
6  N.  E.  252.  75  N.  W.   17. 

364 


Liability  01   Sureties.  §  228 

tion  for  a  cause  arising  subsequent  to  the  commencement  of  the 
action  and  not  related  to  the  merits,  was  not  a  determination  by 
the  court  that  plaintiff  at  the  time  the  temporary  injunction  was 
granted,  "  was  not  entitled  thereto,"  so  as  to  render  the  sureties 
liable.11  And,  so,  where  the  undertaking  was  to  pay  two  parties 
damages  upon  the  dissolution  of  the  injunction  as  to  both  of  them, 
it  was  held  that  the  surety  was  not  liable  to  one  of  them  upon  the 
dissolution  of  the  injunction  as  to  him  alone.12  And  where  the 
complaint  described  the  bond  as  obliging  the  sureties  to  pay  dam- 
ages to  one  and  the  bond  offered  in  evidence  showed  damages  pay- 
able to  two,  the  variance  was  held  to  require,  under  the  Alabama 
Code,  the  exclusion  of  the  bond  as  evidence.18 

§  228.  Same  subject  continued. — Where  in  an  action  to  restrain 
the  collection  of  a  judgment  in  Iowa  the  injunction  bond  was  not 
conditioned  according  to  the  provisions  of  the  Iowa  Code,  which 
required  the  bond  to  be  conditioned  "  to  pay  such  judgment  or 
comply  with  such  final  order,  if  the  injunction  is  not  made  per- 
petual, or  to  pay  any  judgment  that  may  be  ultimately  recovered 
against  the  party  obtaining  the  injunction  on  the  cause  of  action 
enjoined,"  but  was  conditioned  merely  "  to  pay  all  damages  which 
may  be  adjudged  against  petitioner,"  it  was  decided  on  appeal  to 
the  Supreme  Court  and  reversing  the  District  Court,  that  it  was 

11.  Apollinaris  Co.  v.  Venable,  Miller  v.  Stewart,  9  Wheat.  (U.  S.) 
136  N.  Y.  46,  32  N.  E.  555.  See,  also,  680.  And  the  rule  laid  down  by 
Johnson  v.  Ehvood,  82  N.  Y.  363;  Story,  J.,  in  the  case  last  cited,  has 
Palmer  v.  Foley,  71   N.  Y.   106.  been   often   adopted   and   repeated   by 

Where  an  order  is  made  that  the  Supreme  Court  of  Illinois.  Shref- 
an  injunction  issue  on  the  fil-  fler  v.  Nadelhoffer,  133  111.  536.  25  N. 
ing  of  a  bond,  and  the  bond  E.  630;  Vinyard  v.  Barnes.  124  111. 
recites  that  it  is  given  in  con-  346.  16  N.  E.  254;  Burlington  Ins. 
sideration  that  the  said  writ  of  in-  Co.  v.  Johnson,  120  111.  622,  12  N. 
junction  may  issue,  but  the  injunc-  E.  2"05 ;  Trustees  of  Schools  v.  Sheik, 
tion  is  issued  and  served  before  bond  119  111.  579,  8  N.  E.  189;  Dodson  v. 
is  given,  the  sureties  on  the  bond  are  Henderson,  113  HI.  360;  Mix  v.  Sin- 
not  liable.  Carter  v.  Mulrein,  82  Cal.  gleton.  86  111.  194;  Cooper  v.  Peo- 
167,  22  Pac.   1086.  pie,  85  111.  417;   People  v.  Tompkins, 

12.  Ovington  v.  Smith,  78  111.  250.  74  111.  482;  Stull  v.  Hance,  62  111.52 
See,  also,  Waters  v.  Simpson.  7  111.  13.  Washington  v.  Timberlake,  74 
570;    Sharp    v.    Bedell,    10    111.    88;  Ala,  259. 

365 


§229 


Liability  of  Sureties. 


error  to  hold  the  sureties  liable  for  the  amount  of  the  enjoined 
judgment,  for  that  would  be  to  extend  their  liability  by  intend- 
ment to  matters  not  expressly  within  the  terms  of  their  under- 
taking.14 So  the  omission  of  the  court  clerk,  whose  duty  it  is  to 
draw  up  the  bond,  to  include  the  payment  of  an  enjoined  judgment 
in  the  condition,  does  not  alter  the  legal  effect  of  the  surety's  obli- 
gation resulting  from  the  actual  condition  of  the  bond  as  signed 
by  him.15  And  in  a  suit  against  a  surety  to  an  injunction  bond 
conditioned  to  pay  all  moneys  due  or  to  become  due  upon  a  judg- 
ment, "  for  the  sum  of  $2,300  and  costs,"  in  case  the  injunction 
should  be  dissolved,  it  was  held  incompetent  for  the  plaintiff  to 
give  in  evidence  an  exemplification  of  a  record  showing  a  judg- 
ment for  $2,340.06  and  costs,  though  in  other  respects  answering 
to  the  judgment  mentioned  in  the  condition  of  the  bond.16 

§229.  Same  subject;  bond  conditioned  to  pay  damages  sus- 
tained.— Where,  on  the  granting  of  an  injunction  to  restrain  the 


14.  Spencer  v.  Sherwin,  86  Iowa, 
117,  53  N.  W.  86,  citing  10  Amer. 
&  Eng.  Enc.  Law,  p.  991 ;  Ovington 
v.  Smith,  78  111.  250;  United  States 
v.  Boyd,  15  Pet.  208;  Anderson  v. 
Falconer,  34  Miss.  257;  Miller  v. 
Stewart,  9  Wheat.  681,  702;  Dobbin 
v.  Bradley,  17  Wend.  422;  Hunt  v 
Smith,  17  Wend.  180;  Tarpey  v.  Shil 
lenberger,  10  Cal.  390;  Hall  v.  Will 
iamson,  9  Ohio  St.  17;  Webber  v 
Wilcox,  45  Cal.  301 ;  Ferguson  v 
Tipton,  1  B.  Mon.  (Ky.)  28;  Ashby 
v.  Tureman,  3  Littell  (Ky.),  6.  In 
Ferguson  v.  Tipton,  just  cited,  the 
condition  of  the  bond  being  "  to  pay 
all  costs  and  damages  that  might  be 
awarded,"  it  was  held  that  the  sur- 
eties were  not  bound  for  any  part  of 
the  judgment  enjoined  but  only  for 
the  costs  and  damages  in  the  injunc- 
tion suit.  See,  also,  the  similar  de- 
cision in  Grove  v.  Bush,  86  Iowa,  94, 


53  N.  W.   88;    Corder  v.  Martin,   17 
Mo.  41. 

15.  Ferguson  v.  Tipton,  1  B.  Mon. 
(Ky.)  28;  Ashby  v.  Tureman,  3  Litt. 
(Ky.)    6. 

16.  Hall  v.  Williamson,  9  Ohio  St. 
17.  The  difficulty  in  this  case  would 
have  been  avoided  if  the  amount  of 
the  judgment  had  not  been  specified 
in  the  bond,  but  the  judgment  had 
been  referred  to  there  as  described  in 
the  injunction  bill,  and  had  been  cor- 
rectly described  in  the  bill;  but  in 
fact  there  was  no  reference  in  the 
condition  of  the  bond  to  the  bill  for 
either  the  amount  or  description  of 
the  judgment,  and  the  bill  instead  of 
correctly  describing  the  judgment,  so 
as  to  correct  the  description  in  the 
bond  did  not  describe  it  at  all.  See 
United  States  v.  Maurice.  2  Brock. 
96,  for  an  illustration  of  the  rule,  in 
certum  est  quod  certum  potest,  which 
is  sometimes  applicable  to  such  cases. 


366 


Liability  of  Sureties.  §  229 

collection  of  a  judgment,  the  obligors  on  the  injunction  bond  do 
not  undertake  to  pay  the  amount  of  the  judgment,  but  to  pay  the 
party  enjoined  the  damages  he  may  sustain  should  the  injunction 
prove  to  be  wrongful,  to  hold  the  surety  liable  for  the  amount  of 
the  judgment  would  be  to  make  his  obligation  broader  than  the 
terms  of  his  bond.  Thus,  where  a  bond,  given  by  a  person  to 
obtain  an  injunction  releasing  property  taken  under  an  execution, 
issued  on  a  personal  judgment  against  him,  and  restraining  the 
collection  of  such  judgment  on  the  ground  that  it  is  void,  is  for 
all  damages  sustained  by  the  judgment  creditor  by  reason  of  such 
injunction,  and  where,  on  the  hearing  of  such  injunction,  the  bill 
in  the  original  action  is  dismissed  and  the  injunction  dissolved, 
the  measure  of  damages,  in  an  action  on  the  bond  by  the  judgment 
creditor,  is  the  interest  on  the  judgment  for  the  time  the  injunction 
was  in  force,  and  not  the  amount  of  the  judgment,  interest,  and 
costs.  Though  of  course  the  liability  of  a  surety  would  be  quite 
different  under  a  bond  conditioned  that  he  would  abide  the  decision 
of  the  injunction  suit  and  pay  all  sums  of  money  adjudged  against 
his  principal  therein.17     The  bond  must  substantially  conform  to 

17.  Neal  v.   Taylor,  56  Ark.  521,  volved  in  that  consideration  against 

20    S.   W.    352,    per   Cockrill,  C.   J.:  the  appellant,     and     with     that  fact 

"  The  only  liability  assumed  by  the  against  him  the  condition  of  the  bond 

obligors  in  the  injunction  bond  sued  does  not  warrant  a   recovery  of  the 

on,  was  that  they  would  pay  to  the  amount  of  the  judgment.     Ferguson 

party  enjoined  the  damages  which  he  v.   Tipton,    1   B.   Mon.  28;    Ashby  v. 

might  sustain  by  a  wrongful  injunc-  Tureman,  3  Litt.   (Ky.)   6.     We  have 

tion.     There  is  no  stipulation  to  pay  nothing  before  us  except  the  court's 

the  amount  of  the  judgment  enjoined  special  finding  ot  facts  set  out  in  the 

in  case  the  injunction  should  be  dis-  judgment.     Inere  is  no  bill  of  excep- 

solved.     The  only  way  in  which  the  tions.    In  the  case  of  Hunt  v.  Burton, 

obligee  in  the  bond  could  bring  the  18   Ark.   188,  a  recovery  of  the  full 

payment  of  his  judgment  within  the  amount   of    two   judgments    enjoined 

terms  of  the  bond,  would  be  to  prove  was    sustained    in    a    suit    at    law 

that  he  had  lost  the  opportunity  to  against  the  surety  in  the  injunction 

collect  it  by  reason  of  the  injunction.  bond    without   a    showing    that     the 

It  may  be  that  in  that  event  the  full  fruits  of  the  judgments  were  lost  by 

amount  of  the  judgment  could  be  as-  reason  of  the  injunction.     But  there 

sessed  as  damages  sustained  by  rea-  is  a  wide  difference  between  the  facts 

son  of  the  injunction.     See  Crawford  of  that  case  and  this.     The  bond  in 

v.  Woodworth,  9  Bush,  745.     But  the  that    case    contained    the    condition, 

court  resolved  the  question  of  fact  in-  then,  but  not  now,  required  by  stat- 

367 


§230 


Liability  of  Sureties. 


the  injunction  order  or  it  will  not  bind  the  sureties.  Thus,  where 
a  temporary  restraining  order  is  made  upon  an  application  for  a 
temporary  injunction,  upon  condition  that  a  bond  be  filed  to  pay 
all  damages  resulting  from  such  order,  and  is  limited  to  the  pend- 
ency of  the  motion  for  the  temporary  injunction,  a  bond  given  in 
consideration  of  a  writ  of  injunction  and  pending  the  action  im- 
poses no  liability  where  the  temporary  injunction  was  not  granted.18 

§  230.  Enlarging  sureties'  liability  by  the  parties — A  surety's 
liability  cannot  be  extended  by  the  stipulation  of  the  parties  to 
the  injunction  suit,  nor  be  changed  by  a  statute  which  goes  into 
effect  subsequent  to  the  execution  of  the  bond  by  the  surety.19    The 


ute,  that  the  sureties  would  abide  the 
decision  of  the  suit  for  injunction, 
and  pay  all  sums  of  money  adjudged 
against  their  principal  therein.  See 
Blakeney  v.  Ferguson.  18  Ark.  347. 
In  the  decree  dissolving  the  injunc- 
tion the  court  adjudged  against  the 
principal  the  amount  of  the  judg- 
ment which  had  been  enjoined,  to- 
gether with  damages,  and  it  was 
ruled  that  the  sureties  were  liable  for 
the  amounts  so  adjudged.  In  the 
text  of  High  on  Injunctions  it  is 
stated  upon  authority  of  the  Supreme 
Court  of  Missouri,  that  a  surety  who 
is  bound  only  by  a  condition  such  as 
that  construed  in  Hunt  v.  Burton 
would  not  be  liable  for  the  amount 
of  the  judgment  enjoined,  unless  the 
amount  was  adjudged  against  the 
principal  on  the  dissolution  of  the  in- 
junction; and  that  comports  with 
the  reasoning  of  this  court  in  the 
case  of  Blakeney  v.  Ferguson,  supra, 
where  the  court  seemed  to  hold  that 
the  statute  and  the  form  of  the  bond 
itself  contemplated  that  the  court 
dissolving  the  injunction  should  in 
every  case  ascertain  what  damages 
the  obligee  had  sustained,  and  that 
he  could  recover  none  at  law  that  had 


not  been  awarded  against  the  prin- 
cipal in  the  cause  wherein  the  in- 
junction was  dissolved,  though  a  dif- 
ferent view  was  taken  of  the  same 
rtatute  in  Marshall  v.  Green,  24  Ark. 
410.  The  judge  granting  the  in- 
junction in  this  case  could  have  re- 
quired a  bona  to  secure  the  payment 
of  the  judgment  in  case  the  injunc- 
tion should  be  dissolved  as  a  condi- 
tion to  the  issue  of  the  restraining 
order,  if  it  appeared  to  him  that  the 
rights  of  parties  demanded  such  pro- 
tection. The  power  to  impose  equit- 
able conditions  in  such  cases  is  recog- 
nized by  the  general  equity  practice 
(Russell  v.  Farley,  105  U.  S.  433,  26 
L.  Ed.  10G0),  and  is  authorized  by 
statute  (Mansi.  Dig.  §§  3741,  3745). 
But  no  such  condition  was  imposed, 
no  damages  were  assessed,  on  tiie  dis- 
solution of  the  injunction,  and  none 
were  proved  on  the  trial.  To  hold  the 
surety  liable  for  the  amount  of  the 
judgment  would  be  to  make  his  obli- 
gation broader  than  the  terms  of  his 
bond.  That,  of  course,  cannot  be 
done." 

18.  Byam  v.  Cashman,  78  Cal.  525, 
21  Pac.  113. 

19.  Mix  v.  Vail,  86  111.  40. 


368 


Liability  of  Sweeties. 


§230 


dismissal  of  the  bill  by  agreement  of  parties  or  their  counsel,  after 
a  preliminary  injunction  has  issued,  is  not  such  a  final  determina- 
tion that,  the  injunction  was  wrongfully  issued  as  fixes  the  liability 
of  the  sureties  on  the  injunction;  for  otherwise  their  liability  could 
be  fixed  by  the  agreement  of  the  parties  without  their  assent  or  even 
their  knowledge  instead  of  by  the  decree  of  the  court,  as  con- 
templated and  tacitly  understood  when  they  signed  the  bond.20 


20.  Large  v  Steer,  121  Pa.  St. 
30,  15  Atl.  490,  per  Paxson,  J.: 
"  Was  this  agreement  of  counsel  dis- 
missing the  bill  such  a  final  deter- 
mination of  the  same  as  fixed  the  lia- 
bility of  the  sureties  on  the  injunc- 
tion bond?  The  question  is  a  novel 
one.  We  have  not  been  referred  to 
any  Pennsylvania  case  having  any 
bearing  on  it.  I  see  no  difficulty, 
however,  in  disposing  of  it  upon  prin- 
ciple. The  sureties  in  an  injunction 
bond  assume  certain  obligations.  At 
the  same  time  they  have  rights  which 
must  be  respected,  and  of  which  they 
cannot  be  deprived  without  their  con- 
sent. They  are  entitled  to  have  the 
case  against  their  principal  tried  ac- 
cording to  the  forms  of  law,  and  a 
final  decree  or  judgment  entered 
against  him  in  court.  Their  liabil- 
ity consists  in  satisfying  any  judg- 
ment their  principal  may  be  con- 
demned to  pay.  Until  there  is  such 
a  final  determination  of  the  equity 
suit,  as  shows  that  the  injunction 
was  wrongfully  issued,  I  do  not  see 
how  an  action  would  lie  against  the 
principal  in  the  bond,  much  less 
against  his  sureties.  This  view  is 
sustained  by  Hilliard  on  Injunctions, 
84;  Bank  of  Monroe  v.  Gifford,  65 
Iowa,  648,  22  N.  W.  913;  Penny  v. 
Holberg,  53  Miss.  567;  Gray  v.  Veirs, 
33  Md.  159;  Bemis  v.  Gannett,  8 
Neb.  236.  The  reason  for  this  is, 
that  it  may  appear  upon  final  hear- 
ing that  the  plaintiff  was  entitled  to 


his  injunction,  although  it  may  have 
been  dissolved  pending  the  bill.  The 
sureties  on  an  injunction  bond,  as 
before  observed,  have  a  right  to  have 
the  equity  suit  disposed  of  by  the 
court  in  the  usual  way.  There  must 
be  a  decision  upon  the  merits  or 
what  is  equivalent  thereto.  Hence  it 
was  held  by  the  Supreme  Court  of 
Louisiana  in  Baker  v.  Frellson,  32 
La.  Ann.  822,  that  the  surety  on  the 
injunction  bond  was  discharged  by 
an  agreement  entered  into  without 
his  consent,  by  plaintiff  and  defend- 
ant, to  have  the  equity  suit  tried  and 
determined  in  an  irregular  way  at 
chambers  and  after  the  terms  of  the 
court  had  ended.  It  was  said  by 
Bermudez,  C.  J.,  at  p.  831 :  '  The  con- 
sent of  the  parties  to  the  trial  of  the 
matter  in  which  Ludeling,  the  surety, 
was  sought  to  be  made  liable  in  the 
manner  in  which  it  was  tried,  with- 
out his  assent,  and  the  appellant  hav- 
ing selected  and  adopted  such  course, 
we  think  operates  as  a  discharge  of 
the  surety's  liability  on  the  injunc- 
tion bond.'  As  a  general  rule  the 
dismissal  of  a  bill  by  the  agreement 
of  the  parties  is  not  the  equivalent  of 
a  decision  upon  the  merits.  To  this 
effect  are  N.  Y.,  West  Shore,  etc.,  R. 
Co.  v.  Omerod,  29  Hun,  274;  Palmer 
v.  Foley,  71  N.  Y.  106;  Towle  v.  Lea. 
cox,  59  Iowa,  42,  12  N.  W.  764; 
Young  v.  Campbell,  75  N.  Y.  525. 
That  this  must  be  the  rule  as  re- 
gards the  sureties  in  an  injunction 


369 


24 


§  230  Liability  of  Sdketies. 

And  in  a  case  in  Illinois  where  there  was  a  contract  between  com- 
plainant and  defendant  for  the  dissolution  of  an  injunction  by 
which  the  latter  agreed  to  pay  a  certain  sura  of  money  to  the  former 
it  was  decided  that  a  dissolution  in  pursuance  thereof  was  not 
such  a  dissolution  as  was  contemplated  by  the  terms  of  a  bond 
by  which  the  surety  was  "  to  pay  the  damages  resulting  to  the 
obligee  by  reason  of  the  issuing  of  the  injunction  in  case  the  same 
shall  be  dissolved,"  it  being  declared  that  this  clause  in  the  bond 
meant  a  dissolution  by  order  of  court  either  in  a  final  decree  or 
upon  a  motion  to  dissolve  or  upon  complainant's  failure  to  prose- 
cute the  suit  and  not  a  dissolution  by  agreement  of  complainant 
and  defendant  upon  a  settlement  of  all  or  a  part  of  their  contro- 
versies involved  in  the  suit.21  So  in  a  case  in  Ohio  it  is  said: 
"  There  must  be  a  showing  that  it  has  been  determined  by  the 
court  that  the  injunction  should  not  have  been  granted;  .  .  . 
any  agreement  between  the  parties,  subsequent  to  the  allowance 
of  the  injunction,  by  which  the  action  is  dismissed  and  the  injunc- 
tion dissolved,  is  not  sufficient  in  an  action  on  the  bond,  where  there 
has  been  no  judicial  determination  that  the  injunction  should  not 
have  been  allowed;  and,  consequently,  an  award  made  by  arbi- 
trators selected  by  the  parties,  and  in  no  way  subject  to  the  control 
of  the  court,  cannot  have  that  effect,  for  it  only  binds  the  parties 
as  an  agreement,  not  as  a  judgment  rendered  by  the  court,  in  the 
exercise  of  its  jurisdiction,  upon  the  case  made  by  the  parties  and 
submitted  to  it.  The  bond  contemplated  such  a  judgment  and 
none  other."  22  In  this  connection  it  has  been  decided  that  where 
a  stipulation  does  not  change  the  contract  evidenced  by  the  bond 
or  in  any  respect  vary  the  liability  of  the  principal  obligor  on  the 
bond  the  surety  is  not  thereby  released.  In  this  case  it  was  held 
that  the  sureties  in  an  injunction  bond  given  upon  the  issuance 

bond  can  hardly  be  doubted.     Were  21.  Cassem  v.  Ernst,  84  I'll.  App. 

it  otherwise  their  liability  could  bo  70.      Examine   Thomas   v.    Wason,    S 

fixed  by  the  agreement  of  the  parties,  Colo.  App.  452,  46  Pac.  1079. 

•without  their    assent    or    even  their  22.  Columbus,    Hocking  Valley   & 

knowledge,   instead  of   by   the   judg-  T.  R.  Co.  v.  Burke,  54  Ohio  St.  98, 

tnent  or  decree  of  the  court,  as  con-  129,  43  N.  E.  282,  32  L.  R.  A.  329« 

templated     and     tacitly     understood  Per  Minshall,  J. 
-when  they  signed  the  bond." 

370 


Liability  of  Sureties.  §  231 

of  an  injunction  in  a  bill  filed  to  restrain  the  sheriff  from  paying 
over  the  proceeds  of  the  sale  of  certain  property  on  execution  are 
not  released  by  a  stipulation  entered  into  between  the  principal 
obligor  and  the  execution  creditors  by  the  terms  of  which  the 
sheriff  was  to  keep  all  money  due  on  the  executions  until  the 
motion  for  a  receiver  was  determined.23  In  New  York  it  has  been 
decided  that  a  stipulation  entered  into  between  the  parties  to  the 
action  that  a  preliminary  injunction  shall  be  vacated  upon  certain 
conditions  does  not  affect  the  rights  of  the  sureties  or  operate  as  a 
release  of  the  obligation  entered  into  by  them.24 

§  231.  Extent  of  sureties'  liability. — The  sureties  in  an  injunc- 
tion bond  do  not  make  themselves  liable  for  damages  for  injuries 
suffered  by  the  defendant,  while  the  injunction  was  in  force,  as  a 
result  of  unlawful  acts  of  the  complainant  other  than  those  dam- 
ages which  naturally  result  from  the  suing  out  of  the  writ  of 
injunction.23  So  sureties  are  not  liable  for  the  tortious  and  unlaw- 
ful acts  of  plaintiff  in  taking  and  converting  the  property  in 
dispute  during  the  pendency  of  the  injunction.26  A  surety 
on  an  undertaking  given  on  obtaining  an  injunction  against  several 
acts,  as  to  some  of  which  it  is  afterwards  determined  that  an 
injunction  was  improper,  is  liable  for  loss  sustained  in  respect 
of  that  part  of  the  injunction  which  was  dissolved,  although,  as 
to  the  remaining  acts,  the  injunction  was  perpetuated.27  The 
undertaking  of  the  surety  in  an  injunction  bond  where  there  are 
several  complainants,  is  in  law,  for  the  principals,  severally  as 

23.  Keith    v.    Henkleman,   173  111.  25.  Curamings    v.    Mugge,    94    III. 
137,  50  N.  E.  692.     The  court  said:        186. 

"The  Stipulation  referred  to  did  not  26.  Cummings    v.    Mugge,    94    HI 

change  the  contract  evidenced  by  the  186. 

bond,    nor    was    the    liability    of    the  27.  Pierson   v.    Ells,   46   Hun    (N 

principal  obligor  in  the  bond  for  the  Y.),   336.      In   this   case   Hardin,   J.. 

damages,  occasioned  by  the  injunction  advanced   the   view   that   "  when    the 

varied  in  any  respect.     His  liability  plaintiff  seeks  to  restrain  more  than 

remained  exactly  as  it  was  before  the  one   act   he    in   effect   unites    two   or 

stipulation    was    made."      Per    Ma-  more  acts  or  causes    for  an   injunc- 

gruder,  J.  tion,    and    should    be    held    to    have 

24.  Dickerson  v.  Herman,  9  Daly  given  an  undertaking  with  like  force 
(N.  Y.),  299.  and  effect  as  several  undertakings  for 

371 


§  232  Liability  of  Sureties. 

well  as  jointly.  He  in  effect  is  bound  that  each  and  all  of  the 
principals  shall  perforin  and  fulfill  whatever  decree  may  be  ren- 
dered in  the  cause  against  all  or  either  of  them.28  And  the  sureties 
may,  by  force  of  the  terms  of  the  bond  they  execute,  be  liable  to 
others  than  the  defendants  in  the  injunction  suit,  and  where  such 
others  have  a  common  interest  one  of  them  may  sue  upon  the 
injunction  bond  for  the  benefit  of  all.29  When  the  sureties  on  an 
injunction  bond  to  stay  execution  engage  to  pay  the  debt  to  the 
extent  to  which  the  injunction  should  be  dissolved,  regardless  of 
condition  of  the  execution  debtor,  it  is  immaterial  to  their  liability, 
when  the  injunction  is  dissolved,  whether  the  property  was  or  was 
not  subject  to  the  execution,  or  that  the  plaintiff  had  lost  his  debt 
by  reason  of  the  injunction.30  The  securities  in  an  injunction 
bond  are  also  held  to  be  liable  for  costs  accruing  in  the  injunction 
suit  after  the  death  of  their  principal  the  complainant  as  well  as 
before.31  Again,  the  condition  of  the  bond  being  co-extensive  with 
the  objects  and  purposes  of  the  bill  it  has  been  decided  that  the 
admission  of  new  parties  does  not  enlarge  the  responsibility  of  the 
obligors,  the  risk  incurred  by  the  surety,  when  there  was  but  one 
party  complainant,  being  as  great  as  when  the  number  was  in- 
creased.32 

§  232.  Sureties'  liability  for  defendants'  loss  of  profits,  etc. — 
In  California  it  has  been  decided  that  the  sureties  are  not  liable 
for  loss  of  profits  or  counsel  fees  incurred  or  expended  before  the 
giving  of  the  undertaking,  nor  for  counsel  fees  expended  in  defense 
of  the  suit,  nor  for  losses  or  counsel  fees  accruing  after  the  final 
decree  making  the  injunction  perpetual,  as  a  preliminary  injunc- 
tion is  merged  and  ceases  to  have  effect  when  a  decree  for  perpetual 

different  acts  or  causes."  Seacord  v.  court  which  dissolved  it  was  a  fed- 
Morgan,  3  Keyes   (N.  Y.),  643.  cral  court,  to     which    the    case  had 

28    Kelly     v.     Gordon,     3     Head  been  removed,  since  they  cannot  col- 

(Tenn.),  683.  laterally   attack  the   legality   of   the 

29.  Alexander  v.  Gish,  88  Ky.  13,  removal. 
9  S.  W.  801.     In  the  same  case  it  i»  30.  Riggan  v.  Crain,  86  Ky.  249,  5 

held  that  an  injunction  having  been  S.  W.  561. 

dissolved,  the  sureties  on  the  injunc-  31.  Fowler  v.   Scott.   11   Ark.   675. 

tion    bond     are     liable,     though    the  32.  Levy  v.  TV.ylor.  24  Md.  282. 

372 


Liability  of  Sureties. 


§2sa 


injunction  is  rendered.33  They  are,  however,  liable  for  loss  of 
profits  of  an  established  business  which  the  party  enjoined  is  pre- 
vented by  the  injunction  from  carrying  on,34  but  not  for  loss  of 
speculative  profits,  as,  for  instance,  profits  which  the  party 
enjoined  claims  he  would  have  made  from  a  contemplated  exten- 
sion of  his  business.35 

§  233.  Sureties'  liability  on  joint  bonds. — The  general  rule  is 
that  if  a  surety  on  a  joint  obligation  dies  before  his  principal,  his 
representatives  cannot  be  sued  at  law,  nor  will  they  be  charged  in 
equity.36  And  an  injunction  bond  which  is  joint  in  form,  that  is, 
which  is  without  words  of  severalty,  will  not  be  construed  as  joint 
and  several  so  as  to  bind  the  estate  of  the  surety  in  case  he  dies 
before  his  principal,  unless  the  surety  had  a  personal  interest  in 
the  injunction.37  But  it  is  decided  that  the  securities  in  an  injunc- 
tion bond,  in  the  usual  form,  are  not  only  bound'  for  the  perf orm- 


33.  Lambert  v.  Haskel,  80  Cal. 
611,  22  Pac.  327.  See  Curtiss  v. 
Bachman,  110  Cal.  433,  42  Pac.  910. 

34.  Lambert  v.  Haskell,  80  Cal. 
611,  018,  22  Pac.  327.  See  following 
cases: 

Illinois. — Cbapman  v.  Kirby,  49  111. 
219. 

Iowa. — Gibson  v.  Fischer,  68  Iowa, 
30,   25   N.   W.   914. 

Maryland. — Sbafer  v.  Wilson,  44 
Md.  268. 

Michigan. — Allison  v.  Chandler,  11 
Mich.  558. 

Minnesota. — Goebel  v.  Hough,  20 
Minn.  256. 

Rhode  Island. — Simmons  v.  Brown, 
5   R.  I.  299,  73  Am.  Dec.  66. 

35.  Chicago  City  R.  Co.  v.  Howl- 
eon,  86  111.  215. 

36.  United  States. — United  States 
v.  Price,  9  How.  83,  90,  13  L.  Ed.  56. 
Hunt  v.  Rousmanier,  8  Wheat.  174, 
212,  213,  5  L.  Ed.  589,  599. 

Maryland. — Waters  v.  Riley,  2 
Harr.  &  G.  311. 


"Kexo  York. — Bradley  v.  Burwell,  3 
Den.  61,  65. 

Pennsylvania. — Weaver  v.  Shryock, 
6  S.  &  R.  262 ;  Kennedy  v.  Carpenter, 
2  Whart.  361. 

Virginia. — Harrison  v.  Minge,  2 
Wash.  136. 

England. — Sumner  v.  Powell,  2 
Meriv.  30;  Wilmer  v.  Currey,  2  De- 
Gex  &  S.  347 ;  Jones  v.  Beach,  2  DeG. 
6  Beav.  185. 

37.  Pickersgill  v.  Lahens,  15  Wall. 
(U.  S.)  140,  21  L.  Ed.  119,  per 
Davis,  J. :  "  It  is  very  clear  that 
Lafarge  estate  is  discharged  at  law 
from  the  payment  of  the  obligation 
in  controversy,  on  the  familiar  prin- 
ciple that  if  one  of  two  joint  obligors 
die  the  debt  is  extinguished  against 
his  representative  and  the  surviving 
obligor  is  alone  chargeable.  It  is 
equally  clear  that  in  this  clas3  of 
cases  where  the  remedy  at  law  is 
gone  as  a  general  rule  a  court  of 
equity  will  not  afford  relief,  for  it  is 
not  a  principle  of  equity  that  every 


373 


§233 


Liability  of  Sureties. 


ance   of   any   final  decree   that  may   be   rendered   against   their 
principal  the  complainant,  but  when  he  dies  before  final  hearing, 


joint  covenant  shall  be  treated  aa  if 
it  were  joint  and  several.  The  court 
will  not  vary  the  legal  effect  of  the 
instrument  by  making  it  several  as 
well  as  joint,  unless  it  can  see,  either 
by  independent  testimony  or  from  the 
nature  of  the  transaction  itself,  that 
the  parties  concerned  intended  to  cre- 
ate a  separate  as  well  as  joint  lia- 
bility. If  through  fraud,  ignorance 
or  mistake,  the  joint  obligation  does 
not  express  the  meaning  of  the  par- 
ties, it  will  be  reformed  so  as  to 
conform  to  it.  This  has  been  done 
where  there  is  a  previous  equity 
which  gives  the  obligee  the  right  to  a 
several  indemnity  from  each  of  the 
obligors,  as  in  the  case  of  money  lent 
to  both  of  them.  There  a  court  of 
equity  will  enforce  the  obligation 
against  the  representatives  of  the  de- 
ceased obligor,  although  the  bond  be 
joint  and  not  several,  on  the  ground 
that  the  lending  to  both  creates  a 
moral  obligation  in  both  to  pay,  and 
that  the  reasonable  presumption  is 
the  parties  intended  their  contract  to 
be  joint  and  several,  but  through 
fraud,  ignorance,  mistake,  or  want  of 
skill,  failed  to  accomplish  their  ob- 
ject. This  presumption  is  never  in- 
dulged in  the  case  of  a  mere  surety, 
whose  duty  is  measured  alone  by  the 
legal  force  of  the  bond,  and  who  is 
under  no  moral  obligation  whatever 
to  pay  the  obligee,  independent  of  his 
covenant,  and  consequently  there  is 
nothing  on  which  to  found  an  equity 
for  the  interposition  of  a  court  of 
chancery.  If  the  surety  should  die 
before  his  principal,  his  representa- 
tives cannot  be  sued  at  law,  nor  will 
they  be  charged  in  equity.  These  gen- 
eral doctrines  on   this  subject  were 


presented  at  large  in  this  court  in 
the  case  of  the  United  States  v.  Price. 
and  they  are  sustained  by  the  text- 
writers  and  books  of  reports  in  this 
country  and  England.  The  authority 
of  the  decisions  on  this  subject  we 
do  not  understand  the  appellant  as 
questioning  in  a  proper  case;  but  he 
insists  they  are  not  applicable  here. 
His  position  is  that  a  statutory  obli- 
gation like  the  bond  in  question  i9 
different  in  principle  and  should 
be  construed  differently  from  a 
contract  made  by  private  parties 
between  themselves,  as  the  obli- 
gees in  such  a  bond  cannot  di- 
rect the  form  it  shall  take  or  elect 
whether  to  accept  or  refuse  it.  The 
bond  which  is  the  foundation  of  this 
suit  was  given  in  1846  under  the 
order  of  the  Court  of  Chancery  of 
New  York,  to  stay  the  proceedings  in 
an  action  at  law  then  pending  in  the 
Superior  Court  of  the  city,  and  it 
is  argued  as  the  statute  does  not  re- 
quire bonds  of  this  character  to  be 
joint  and  several,  in  legal  intendment 
they  must  be  joint  in  form  and  all 
the  obligors  therefore  should  be  re- 
garded as  principals.  It  is  undoubt- 
edly true,  as  words  of  severalty  are 
not  employed,  that  a  joint  bond  is  a 
compliance  with  the  law,  but  it  by  no 
means  follows  that  a  joint  and  sev- 
eral obligation  is  not  an  equal  com- 
pliance with  its  terms.  It  is  cer- 
tainly not  forbidden,  and  as  the  stat- 
ute is  silent  on  the  subject,  the  fair 
intendment  is  that  either  was  au- 
thorized, and  that  the  court  had  the 
right  to  direct  which  should  be  given. 
If  this  be  so,  then  it  cannot  properly 
be  said  that  the  party  enjoined  had 
no  voice  in  the  nature  or  sufficiency 


374 


Liability  of  Sureties. 


§234 


and  the  cause  is  revived  in  the  name  of  his  administrator,  they  are 
bound  for  the  satisfaction  of  the  decree  rendered  against  him.38 

§  234.  Bonds  as  joint  or  several. — It  has  been  decided  that  in 
the  absence  of  express  terms  fixing  the  character  of  an  injunction 
bond,  it  should  be  construed  to  be  either  joint  or  several  according 
as  the  interests  of  the  parties  enjoined  are  joint  or  several.39  And 
in  an  action  on  an  undertaking  given  in  an  injunction  suit,  the 
fact  that  one  of  the  principals  in  the  injunction  has  been  discharged 
as  a  party  defendant,  does  not  release  the  sureties  on  the  undertak- 
ing, since  the  liability  of  the  principals  being  several  as  well  as 
joint,  an  award  of  damages  against  one  principal  is  sufficient  to 
hold  the  sureties.40 


of  the  security  to  be  taken,  for  the 
discretion  of  the  chancellor  was, 
necessarily,  to  be  exercised  in  rela- 
tion to  both  these  matters  if  his  at- 
tention was  directed  to  them,  after 
both  sides  were  heard.  It  is  quite  ap- 
parent, if  this  discretion  had  been  in- 
voked that  the  instrument  of  security 
might  have  been  different;  and 
equally  apparent  that  Lafarge  in 
case  this  had  been  done  might  have 
been  unwilling  to  assume  the  addi- 
tional risks  which  a  separate  liabil- 
ity imposed  on  him.  We  must  sup- 
pose, in  the  absence  of  any  evidence 
on  the  subject,  that  he  knew  the  legal 
differences  between  the  different  kinds 
of  obligations,  and  became  bound  in 
the  way  he  did  because  the  joint  li- 
ability was  more  advantageous  to 
him.  If  this  was  his  intention  it 
would  be  manifestly  unjust  for  a 
court  of  equity,  after  the  legal 
status  was  fixed  by  his  death,  to 
change  the  nature  of  the  obligation 
which  he  executed  in  order  to  charge 
his  estate.  In  the  cases  in  which 
equity  has  treated  the  obligation  aa 
joint  and  several,  although  in  form 
joint,  the  surety  participated  in  the 
consideration.     In  this  case  Lafarge 


had  no  pecuniary  interest  in  the  liti- 
gation  which  was  enjoined,  and  de- 
rived no  personal  benefit  from  the  in- 
strument of  writing  which  he  signed, 
and  therefore  no  good  reason  can  be 
furnished  why  his  standing  in  a 
court  of  equity  is  not  as  favorable 
as  if  he  were  surety,  without  ad- 
vantage to  himself,  in  the  borrow- 
ing of  money.  In  neither  case  is 
there  any  obligation  to  pay  indepen- 
dent of  the  covenant.  In  the  one 
there  is  a  liability  for  a  debt;  in  the 
other,  for  a  result  in  an  action  at 
law.  Both  are  cases  of  contract,  for, 
indeed,  suretyship  can  exist  in  no 
other  way;  and  we  know  of  no  prin- 
ciple of  equity  by  which  a  contract 
of  indemnity  is  to  be  construed  so  as 
to  charge  an  estate,  and  an  engage- 
ment to  pay  money  to  receive  a  con- 
trary construction.  The  equities  in 
both  are  clearly  equal,  and  as  the 
estate  of  Lafarge  is  not  liable  at 
law.  it  will  not  be  held  liable  in 
equity." 

38.  Fowler  v.  Scott,  11  Ark.  675. 

39.  Sturgis  v.  Knapp,  33  Vt.  486, 
519. 

40.  Smith    v.    Atkinson,    18    Col. 
255,  32  Pac.  425,  per  Hayt,  C.  J.: 


375 


§235 


Liability  of  Sureties. 


§  235.  Sureties  when  bound  by  decree  though  not  parties. — 

A  decree  dismissing  an  injunction  because  wrongfully  sued  out 
is  conclusive  as  to  the  wrongful  suing  out,  when  offered  in  evidence 
in  an  action  for  damages  against  the  surety  on  a  bond,  the  under- 
taking of  which  is  that  the  principal  will  pay  all  damages  which 
may  be  adjudged  by  reason  of  the  injunction,  although  the  surety 
may  not  have  been  a  party  to  the  injunction,  and  there  may  have 
been  no  damages  adjudged  against  the  principal.  A  surety  not 
only  may  stand  on  the  precise  terms  of  his  contract,  but  he  also 
must  abide  by  such  terms,  and  if  he  undertakes  to  pay  all  such 
damages  as  may  be  adjudged  against  complainant,  in  case  the 
injunction  shall  be  dissolved,  he  thereby  voluntarily  assumes  such 
a  connection  with  the  injunction  suit  as  to  be  concluded  and  bound 
by  the  decree  in  it  though  not  a  party  to  it.41 


"Tabor  and  Smith  were  jointly  and 
severally  liable  as  principals  for  the 
wrongful  suing  out  of  the  injunction, 
and  an  award  of  damages  against 
either  is  sufficient  to  maintain  an 
action  against  the  sureties  upon  the 
undertaking.  This  is  true  in  the  ab- 
sence of  the  code  provision,  and  while 
this  provision  does  away  with  the 
necessity  of  an  award  of  damages  be- 
fore bringing  suit,  permitting  instead 
the  damages  to  be  assessed  against 
all  parties  in  one  action,  this  does  not 
change  the  joint  and  several  nature 
of  the  liability." 

41.  Shenandoah  Nat.  Bank  v. 
Read,  86  Iowa,  136,  53  N.  W.  96,  the 
court :  "  Appellant  contends  that,  as 
he  was  not  a  party  to  the  action  in 
which  the  decree  was  rendered,  he  is 
not  bound  by  the  finding  therein  that 
the  injunction  was  wrongly  sued  out, 
and  therefore  the  court  erred  in  ad- 
mitting the  decree  in  evidence,  and 
in  giving  the  instruction  quoted 
above.  The  right  of  Elizabeth  Bab- 
cock  to  the  injunction  was  directly 
in  issue  in  that  case,  and  was  adjudi- 


cated against  her.  The  dismissal  of 
her  petition  was  a  determination  that 
she  was  not  entitled  to  the  injunc- 
tion, or,  in  other  words,  that  it  was 
wrongly  sued  out.  Loomis  v.  Brown, 
16  Barb.  325;  Dowling  v.  Polack,  18 
Cal.  627.  The  case  before  us  must 
not  be  confounded  with  cases  where 
fraud  or  collusion  in  obtaining  the 
decree  is  alleged,  nor  with  those 
upon  bonds  differently  conditioned. 
Appellant  cites  cases  upon  bonds 
given  to  secure  the  payment  of  any 
sum  that  might  be  found  due  from 
the  principal  on  an  accounting,  and 
cases  on  official  bonds.  These  are  not 
in  point;  the  former  being  merely 
security  for  the  payment  of  a  debt, 
and  the  latter  conditioned  generally 
for  the  performance  of  official  duties, 
and  not  for  a  specific  act,  as  in  this 
case.  Appellant  relies  upon  the  gen- 
eral doctrine  that  none  but  parties  to 
an  action,  and  their  privies,  are  bound 
by  the  adjudication.  While  such  is 
the  general  rule,  the  books  and  daily 
practice  afford  many  instances  where 
the  sureties  are  concluded,  by  judg- 


376 


Liability  of  Sureties. 


§236 


§  236.  Suing  principal  before  surety. — Where  the  surety  under- 
takes to  respond  in  damages,  if  the  court  shall  decide  that  the 
plaintiff  was  not  entitled  to  an  injunction,  his  liability  becomes 
absolute  on  such  decision  being  reached  by  the  court,  and  the  de- 
fendant is  not  obliged  to  bring  a  suit  for  his  damages  against  the 
plaintiff  before  proceeding  against  the  surety.42  And  where  the 
injunction  bond  executed  by  the  sureties  is  conditioned  that 
plaintiff  "  shall  pay  all  sums  of  money,  damages  and  costs  that 
shall  be  adjudged  against  him  if  the  injunction  shall  be  dissolved," 
the  amount  of  damages  assessed  against  him  in  the  injunction,  suit 
if  not  vitiated  by  fraud  or  collusion,  is  binding  and  conclusive 


ments  against  their  principals, 
though  not  parties  to  the  action ;  as, 
for  instance,  in  the  case  of  replevin 
and  supersedeas  bonds.  Whether,  in 
the  absence  of  statute,  the  surety  is 
thus  concluded,  depends  upon  the 
terms  and  conditions  of  his  under- 
taking. If  his  covenant  is  that  his 
principal  will  comply  with  the  judg- 
ment, then  he  is  concluded  by  that 
judgment  as  to  all  matters  deter- 
mined thereby,  though  not  a  party 
to  the  action.  In  McAllister  v. 
Clark,  86  111.  236.  it  was  claimed, 
as  in  this  case,  that,  the  surety  not 
being  a  party,  he  was  not  bound  by 
the  decree.  The  court  says :  '  The 
misfortune  to  him  is,  hn  contract 
binds  him  to  abide  that  decree,  with- 
out being  a  party  to  it.  His  under- 
taking is  that  he  will  pay  all  such 
costs  and  damages  as  shall  be  ad- 
judged against  the  complainant  in 
case  the  injunction  shall  be  dissolved.' 
In  Towle  v.  Towle,  46  N.  H.  434,  the 
court  says :  '  By  signing  the  bond  in 
suit  with  Levi  G.  Towle,  the  plain- 
tiff in  the  suit  in  equity,  the  sureties 
voluntarily  assumed  such  a  connec- 
tion with  that  suit  that  they  are  con- 
cluded by  the  decree  in  it,  in  the 
present  suit  upon  the  bond,  so  far 
os   the   same    matters   are   in    ques- 


tion.' A  number  of  cases  are  cited 
fully  sustaining  the  conclusion  an- 
nounced. See,  also,  Pico  v.  Web- 
ster. 14  Cal.  204.  In  some  of  the 
States,  damages  in  cases  like  this  are 
ascertained  in  the  original  action  in 
pursuance  of  statute  or  the  rules  of 
equity  practice.  Methodist  Churches 
v.  Barker,  18  N.  Y.  463;  McAllister 
v.  Clark,  86  111.  236;  Lothrop  v. 
Southworth,  5  Mich.  436;  Sturgis  v. 
Knapp,  33  Vt.  486,  10  Amer.  &  Eng. 
Enc.  Law  994;  Bailey  v.  Gibson,  29 
Ark.  472.  In  this  State  such  damages 
are  only  ascertainable  and  recoverable 
in  an  action  on  the  bond.  Fountain 
v.  West,  68  Iowa,  380,  27  N.  W.  264. 
In  States  where  the  practice  is  to 
assess  damages  iu  the  original  action, 
it  has  been  repeatedly  held  that  the 
surety  on  the  injunction  bond  was 
concluded  by  the  finding  as  to  dam- 
ages, though  not  notified  of,  or  a 
party  to,  the  proceeding.  See  cases, 
supra.  The  reasons  that  render  the 
decree  as  to  damages  conclusive  on 
the  surety  apply  with  equal  force 
to  the  finding  that  the  injunction 
was  wrongfully  sued  out." 

42.  Dangel  v.  Levy,  1  Idaho,  722, 
725.  See  Shenandoah  Nat.  Bank  v. 
Read,  86  Iowa,  136,  53  N.  W.  96. 


377 


§  237  Liability  of  Sureties. 

on  the  sureties  under  the  terms  of  their  undertaking,  though  a 
judgment  might  also  have  been  entered  against  them  at  the  time 
of  the  assessment.43  But  where  the  condition  of  the  bond  was 
that  plaintiff  "  shall  pay  all  such  costs  and  damages  as  may  be 
recovered  against  him  for  the  wrongful  suing  out  of  said  injunc- 
tion," the  complaint  on  the  bond  in  the  action  against  the  surety 
was  held  demurrable  in  not  averring  that  a  judgment  had  been 
recovered  against  the  principal,  and  that  he  had  failed  to  satisfy 
it.44  And  if  the  sureties  undertake  that  such  damages  shall  be 
paid  as  shall  be  awarded  against  the  principal,  an  action  cannot 
be  maintained  against  them  if  it  is  not  alleged  that  damages  were 
awarded  against  him,  and  he  has  failed  to  pay  them.45  Under  a 
statute  providing  that  in  suing  on  an  injunction  bond  suit  need 
not  be  brought  in  the  first  instance  against  the  principal  to  ascer- 
tain the  amount  of  damages  sustained,  but  principal  and  surety 
may  be  sued  together,  and  at  the  trial  damages  may  be  assessed 
and  awarded  against  principal  and  surety  in  the  action  it  has  been 
held  that,  where  the  action  is  dismissed  by  plaintiff  on  his 
motion  and  the  injunction  dissolved  at  his  cost,  an  action  can 
be  brought  against  the  surety  on  the  undertaking  to  recover  for 
attorneys'  fees  and  expenses  incurred  in  the  dissolution  of  the 
injunction,  though  no  damages  were  awarded  on  the  dissolution.46 

§237.  Release  of  surety;  defenses. — A  surety  cannot  plead 
ignorance  of  the  injunction  suit,  the  pendency  of  which  is  recited 
in  the  injunction  bond  which  he  executes,47  or  that  the  injunction 
was  not  granted,48  and  is  bound  to  take  notice  of  the  answer  in  the 
original  suit,  and  of  amendments  made  to  the  answer.49  And  it  is 
decided  that  the  sureties  cannot  go  behind  the  decree  in  the  injunc- 

43.  Nolan  v.  Jones,  108  Mo.  431,  46.  Lynch  v.  Metcalf.  3  Colo.  App. 
16  S.  W.  1107.  131,  32  Pac.  183.     See,  also,  Smith  v. 

44.  Dunn  v.  Davis  37  Ala.  95,  cit-  Atkinson.  18  Col.  255,  32  Pac.  425. 
ing  Garrett  v.  Logan,  19  Ala.  344,  47.  Lambert  v.  Haskell,  80  Cal. 
346;  Davis  v.  Gully.  2  Dev.  &  Bat.  611.  22  Pac.  327;  Pierce  v.  Whiting, 
360;  Watts  v.  Sheppard,  2  Ala.  425.  63   Cal.   540. 

45.  Anderson  v.  Falconer,  34  Miss.  48.  Fowler  v.  Scott,  11  Ark.  675. 
257;  Tarpey  v.  Shillenberger,  10  Cal.  49.  Sharp  v.  Schmidt,  62  Tex.  263. 
390. 

378 


Liability  of  Sureties.  §  237 

ticm  suit  to  question  the  legality  of  an  agreement  upon  which  the 
decree  was  founded.50  And  it  is  no  defense  in  mitigation  of 
damages  in  an  action  against  the  surety  that  his  principal  is 
solvent  and  able  to  pay  his  own  debts.51  Nor  is  it  material  that 
there  is  an  omission  in  the  body  of  the  bond  of  the  names  of  the 
sureties  who  signed  it  where  the  bond  was  approved  by  the  court.52 
And  a  delay  in  applying  for  an  assessment  of  damages  against  the 
sureties  on  an  injunction  bond  will  not  bar  recovery,  the  claim  for 
damages  having  been  left  open  on  a  settlement  between  the  sureties 
and  their  principal.53  Again,  sureties  on  an  injunction  bond,  where 
a  foreclosure  is  restrained,  cannot  include  as  a  payment  on  the 
damages  assessed  against  them  the  amount  at  which  they  bid  in 
the  land  at  the  foreclosure  sale  for  their  own  protection.54  If  an 
injunction  bond  is  executed  by  the  obligors  before  the  clerk  of  the 
court  and  in  the  court's  presence,  and  it  is  accepted  and  acted  on  as 
their  bond,  the  surety  is  estopped  from  setting  up  the  defense  that 
by  express  agreement  with  his  principal,  but  of  which  the  obligee 
knows  nothing,  he  signed  the  bond  upon  the  condition  that  another 
person  named  should  sign  it,  and  that  this  fact  was  announced 
to  the  clerk  at  the  time  the  surety  signed.55  And  it  has  been  decided 
that  when  in  any  particular  case,  a  clerk  and  master  has  accepted 
an  injunction  bond,  and  thus  judicially  passed  upon  the  questions 
of  the  sufficiency  of  the  sureties  thereto,  of  the  genuineness  of  their 
signatures  and  of  such  signatures  having  been  affixed  under  such 
circumstances  as  to  be  obligatory  upon- them,  the  proof  to  overturn 
his  action,  by  showing  that  the  signatures  of  any  of  the  parties  were 
put  thereon  as  an  escrow  should  be  as  clear,  satisfactory  and  de- 
monstrative as  that  required  to  set  aside  a  decree  or  judgment  of  a 
court  of  record  upon  the  ground  of  fraud.56    Where  an  injunction 

50.  Oelrichs   v.    Spain.     15    Wall.       598,  23  N.  E.  1112,  holding  that  a  de- 
(U.  S.)   211,  229,  21  L.  Ed.  43.  lay  of  four  years  did  not  bar  recov- 

See    §    230    herein   as   to   effect   of  ery. 

agreements  of  parties  to  dissolve  an  54.  Holcomb    v.    Rice,    119    N.    Y. 

injunction.  598.  23  N.  E.  1112. 

51.  Hunt  v.  Burton,   18  Ark.  188.  55.  Harman    v.    Howe,    27    Gratt. 

52.  Hyatt  v.  Washington.  20  Ind.  (Va.)    676. 

App.  148,  50  N.  E.  402,  67  Am.  St.  56.  Ward     v.     Cullom,     2     Cold. 

Rep.  248.  (Tenn.)    353,  365.     Per  Milligan,  J. 

53.  Holcomb  v.  Rice,    119    N.    Y. 

379 


§  238  Liability  of  Sureties. 

is  dissolved  upon  a  condition  and  that  condition  has  been  complied 
with  by  the  defendant  in  equity,  the  surety  in  the  injunction  bond 
is  exonerated.57  And  where  an  order  is  given  that  an  injunction 
may  be  continued  upon  the  giving  of  a  new  bond  with  new  security 
and  such  new  bond  is  given  and  accepted  the  sureties  in  the  first 
bond  are  thereby  discharged.58  But  where  a  motion  to  dissolve  an 
injunction  is  overruled  before  a  trial  on  the  merits  the  judgment 
sustaining  the  injunction  is  only  interlocutory  and  does  not  release 
the  surety.59  ~Nor  are  the  obligors  on  a  bond  released  by  a  judg- 
ment making  an  injunction  perpetual  where  there  is  a  subsequent 
reversal  of  the  judgment  in  consequence  of  which  the  injunction 
is  dissolved.60  And  the  abatement  of  the  suit  in  equity  as  to  one 
of  several  joint  plaintiffs  by  the  neglect  of  both  parties  to  revive, 
or  the  discharge  of  on©  upon  some  ground  applicable  to  him  alone 
does  not  affect  the  liability  of  the  surety  for  the  surviving  party 
or  parties  against  whom  a  final  decree  may  have  been  properly 
ordered.61 

§  238.  Sureties'  obligation  construed. — While  the  surety  to  an 
injunction  bond  cannot  be  held  beyond  the  express  terms  of  his 
contract,  yet  the  meaning  of  such  terms  is  a  matter  of  interpreta- 
tion which  is  subject  to  the  same  rules  as  are  observed  in  respect 
to  other  contracts.  Thus  where  the  sureties  bound  themselves  to 
pay  the  parties  enjoined,  "  in  case  said  injunction  shall  issue," 
such  damages  as  they  may  sustain  by  reason  of  said  injunction, 
it  has  been  decided  that  the  quoted  words  "  shall  issue  "  must  be 
construed  to  mean  "  shall  be  continued  in  force,"  for  otherwise  the 
undertaking  would  be  futile,  and  the  injunction  order  ridiculous.62 

57.  Gray    v.    Campbell,     3    Munf.  vides  that  in  interpreting  the  terms 
(Va.)    251.  of  a  contract  of  suretyship  the  same 

58.  Kent  v.  Bierce,  6  Ohio,  336.  rules  are   to   be  observed   as    in   the 

59.  McMillen  v.  Gibson,  10  La.  (0.  case  of  other  contracts.    Section  1643 
S.)  517.  requires    that    a    contract    be    inter- 

60.  Williams  v.  Baker,  13  Ohio  C.  preted  so  as  to  make  it  capable  of  be- 
C.  500,  7  Ohio  Dec.  515.  ing  carried   into  effect,   if  it  can   be 

61.  Kelly  v.  Gordon,  3  Head  done  without  violating  the  intention 
(Tenn.),  683.  of  the  parties.     Held,  that  as  no  un- 

62.  Civil  Code,   Cal.,  §  2837,  pro-  dertaking  can  be  required  on  final  in- 

380 


Liability  of  Sureties. 


239 


§  239.  Same  subject — In  Illinois,  too,  it  has  been  held  that 
the  rule  of  strict  construction,  as  applied  to  the  contract  of  the 
sureties  on  an  injunction  bond,  and  forbidding  their  liability  to 
be  extended  by  implication  beyond  the  terms  of  the  bond,  in  no 
way  interferes  with  the  use  of  the  ordinary  tests  by  which  the 
intention  of  contracting  parties  is  determined.  Thus  where,  on 
dismissal  of  an  injunction  suit,  a  temporary  injunction  was  con- 
tinued in  force  pending  an  appeal,  on  a  bond  being  given  that 
the  appellant  should,  inter  alia,  pay  the  "  damages  growing  out 
of  the  continuance  of  the  injunction,  in  case  the  said  decree 
should  be  affirmed,"  it  was  held  that  the  sureties  on  such  bond 
were  liable,  on  the  affirmance  of  the  decree,  for  damages  caused 
by  the  continuance  of  the  injunction,  though  no  damages  were 
or  could  be  awarded  in  the  decree  of  affirmance;  for  the  other 


junction,  the  Code  of  Civil  Procedure 
providing  only  for  undertakings  on 
preliminary  injunctions,  the  words 
"  shall  issue,"  in  an  undertaking 
given  on  the  continuance  of  a  pre- 
liminary injunction,  conditioned  "  in 
case  said  injunction  shall  issue," 
must  be  construed  under  these  code 
provisions  as  meaning  "  shall  be  con- 
tinued in  force.''  Lambert  v.  Has- 
kell, 80  Cal.  611,  22  Pac.  327.  The 
court  said.  "  It  is  argued  that  the 
phrase  '  in  case  said  injunction  shall 
issue '  shows  that  some  injunction  to 
issue  in  the  future  was  intended,  and 
that  it  must  be  held  that  the  under- 
taking was  upon  the  final  injunction 
to  be  issued  in  case  judgment  should 
be  ordered  for  the  plaintiffs  upon  the 
trial.  But  we  do  not  think  so.  If 
the  language  had  been  '  in  case  said 
injunction  shall  be  continued  in 
force '  instead  of  '  shall  issue '  there 
could  have  been  no  doubt.  The  ques- 
tion is  therefore  whether  the  words 
'  shall  issue '  can  be  construed  to 
mean  '  shall  be  continuel  in  force.' 
Now  we  think  that  there  might  be 
cases    in     which    the     circumstances 


would  show  that  the  two  phrases 
were  used  as  equivalent  to  each  other. 
There  is  no  provision  of  statute  ex- 
pressly authorizing  the  requirement 
of  an  undertaking  as  a  condition  for 
'  continuing  '  an  injunction.  The  only 
provision  is  that  an  undertaking  may 
be  required  'on  granting'  an  injunc- 
tion. But  it  cannot  be  doubted  that 
the  court  has  power  where  it  appears 
that  the  injunction  was  issued  on  an 
insufficient  undertaking,  to  order  (as 
it  did  in  the  case  in  question )  that 
the  injunction  should  be  dissolved 
unless  a  sufficient  undertaking  should 
be  given — or,  in  other  words,  should 
be  continued  in  force  only  on  condi- 
tion that  a  sufficient  undertaking 
should  be  given.  Such  a  proceeding 
would  be  sustained  upon  the  theory 
that  the  words  '  on  granting '  were 
broad  enough  to  mean  '  on  continuing 
in  force.'  For  the  transaction  would 
be,  in  substance  and  effect,  though 
not  in  form,  the  '  granting '  of  an  in- 
junction. And  the  same  would  be 
true  if  the  language  had  been  '  on  is- 
suing '  instead  of  'on  granting '  the 
injunction.    We  think,  therefore,  that 


381 


§240 


Liability  of  Sureties. 


construction  of  the  condition  of  the  bond,  contended  for  by  the 
sureties,  would  render  the  condition  meaningless.43 


§  240.  Awarding  damages  against  sureties  in  original  action. 
—The  general  rule  is  that  a  judgment  for  damages  cannot  be 
rendered  against  sureties  on  an  injunction  bond,  nor  such  damages 
assessed,  in  the  original  action  in  which  the  bond  was  given;  but 


the  two  phrases  mentioned  may  be 
held  to  be  in  some  cases  equivalent  in 
meaning  if  the  circumstances  show 
that  such  was  the  intention.  And  the 
circumstances  here  clearly  show  that 
such  was  the  intention,  for  it  is 
admitted  by  the  pleadings  that  the 
undertaking  in  suit  was  given  to  con- 
tinue in  force  an  injunction." 

63.  Schreffler    v.    Nadelhoffer,    133 
111.  536,  25  N.  E.  630.     "  It  must  be 
conceded    that   the   condition   of   the 
bond  in  question,  when  read  by  itself 
and  without  reference  to  surrounding 
circumstances,    is  of  doubtful   mean- 
ing.   The  draftsman,  in  preparing  the 
bond,  instead  of  drawing  two  bonds, 
one  to  serve  as  an  appeal  bond  and 
the  other  as  an  injunction  bond,  took 
a  blank  appeal  bond,  and  endeavored 
by   inserting  a  clause  providing  for 
the  payment  of  the  damages  growing 
out  of  the  continuance  of  the  injunc- 
tion, to  make  it  serve  the  purposes 
of  both  an  appeal  and  an  injunction 
bond.     The  place   in  which  the  last 
named  clause  is  inserted,  and  its  rela- 
tion to  the  other  words  of  the  con- 
dition, are  such  as  to  render  it  uncer- 
tain, if  we  consider  merely  what  ap- 
pears   upon   the   face   of   the  instru- 
ment, whether  the  undertaking  is  to 
pay  all  damages  growing  out  of  the 
continuance  of  the  injunction,  in  case 
the  decree  is  affirmed  by  the  Appel- 
late Court,  or  merely  to  pay  all  such 
damages  arising  from  that  cause  as 


should  be  awarded  against  the  obli- 
gors by  the  judgment  of  that  court. 
Either  reading  may  be  adopted  with- 
out doing  violence  to  any  of  the  lan- 
guage of  the  condition.    But  when  we 
view   the   condition    in    the    light   of 
surrounding  circumstances,  there  can 
be  no  reasonable  doubt  as  to  which  of 
those  meanings  was  within  the  pur- 
pose and   intent  of  the   parties.     Of 
these   circumstances   we    may   notice, 
first,    the    fact    that    the    Appellate 
Court  had  no  jurisdiction,  whatever 
might  be  the  outcome  of  the  appeal, 
to  render  judgment  against  the  obli- 
gors for  the  damages  resulting  from 
the   continuance    of    the    injunction. 
We  must  attribute  to  the  obligors  the 
intention  to  enter  into  an  obligation, 
every    provision   of   which   would    be 
valid,   but  if  the  condition   is   inter- 
preted as  importing  an  obligation  to 
pay  only  such  damages  as  should  be 
adjudged  by  the  Appellate  Court,  it 
becomes,  so  far  as  that  part  of  it  ia 
concerned,  merely  senseless  and  nuga- 
tory.    Then,  again,  the  circumstances 
under   which   the    appeal    was   taken 
and  the  bond  given  point  to  the  con- 
clusion that  it  was  the  intention  of 
the  obligors  to  secure  to  the  obligee 
the  payment  of  the  damages  growing 
out    of    the    continuance    of    the    in- 
junction, in  case  the  decree  should  be 
affirmed.    The  Circuit  Court  had  ren- 
dered its  decree,  dismissing  the   bill 
for  want  of  equity,  and  dissolving  the 


382 


Liability  of  Sureties. 


240 


the  proper  mode  of  assessing  such  damages  is  by  an  independent 
action  on  the  bond,  in  which  the  sureties  may  have  their  day  in 
court.64  The  general  rule  is  followed  in  Kentucky,  except  when 
the  enforcement  of  a  judgment  is  enjoined.65  Certainly  in  no 
jurisdiction  should  damages  be  awarded  against  a  surety  on  an 
injunction  bond,  without  notice  to  him,  or  without  some  proceeding 
to  which  he  is  made  a  party.66     In  Vermont  it  has  been  decided 


injunction.  The  complainants  de- 
sired to  remove  the  record  to  the  Ap- 
pellate Court  for  review,  and  to  have 
the  injunction  continued  in  force 
until  the  final  decision  of  that  court. 
To  obtain  such  continuance  of  an  in- 
junction, a  party  is  ordinarily  re- 
quired to  execute  to  the  opposite 
party  a  bond  indemnifying  him 
against  all  damages  which  may  there- 
by result  to  him.  This  we  think  the 
obligors  wished  and  intended  and 
undertook  to  do,  and  if  the  bond  is 
equally  susceptible  of  two  interpre- 
tations, one  of  which  is  consistent 
with  and  accomplishes  that  intention, 
as  we  think  it  is,  it  is  very  clear  that 
such  interpretation  must  be  deemed 
to  be  the  true  one.  The  undertaking 
to  pay  the  appellee  his  damages, 
upon  the  sole  condition  that  the  de- 
cree should  be  affirmed  by  the  Appel- 
late Court,  must  be  held  to  be  within 
the  strict  terms  of  the  bond  as  the 
obligors  made  it,  and  not  an  obliga- 
tion imported  into  it  by  implication 
or  construction.  Citing  Stull  v. 
Hance,  62  111.  52;  Mix  v.  Singleton, 
86  111.  194;  Kastner  v.  Winstanley, 
20  Up.  Can.  C.  P.  101;  Hamilton  v. 
Van  Rensselaer,  43  N.  Y.  244 ;  Belloni 
v.  Freeborn,  63  N.  Y.  383;  Gates  v. 
McKee,  13  N.  Y.  232;  Crist  v.  Bur- 
lingame,  62  Barb.  (N.  Y.)  351;  Locke 
v.  McVean,  33  Mich.  473." 

64.  Spencer  v.  Sherwin,  86  Iowa, 
117,  53  N.  W.  86;  Fountain  v.  West, 


68  Iowa,  380,  27  N.  W.  264 ;  Grove  v. 
Bush,  86  Iowa,  94,  53  N.  W.  88;  Tay- 
lor v.  Brownfield,  41  Iowa,  264. 

65.  Rankin  v.  Estes,  13  Bush. 
(Ky.),  428;  Logsden  v.  Willis,  14 
Bush    (Ky.),  183. 

66.  Spencer  v.  Sherwin,  86  Iowa. 
117,  53  N.  W.  86.  The  court  said:  "  The 
sole  question  presented  on  this  rec- 
ord is,  did  the  District  Court  have 
such  jurisdiction  of  plaintiffs  herein, 
as  sureties  on  the  injunction  bond, 
that  it  could  render  a  valid  judgment 
against  them  as  a  part  of  its  judg- 
ment in  the  original  case  in  which 
the  bond  was  given?  We  think  it 
is  very  clear  that  the  court  in  this 
case  had  no  jurisdiction  whatever  to 
render  judgment  against  the  sureties. 
They  were  not  parties  to  the  action. 
They  were  in  no  manner  notified  of 
the  proceeding  to  assess  damages 
against  them.  The  form  of  the  obli- 
gation entered  into  by  them  did  not 
of  itself,  and  in  the  absence  of  stat- 
ute, have  the  legal  effect  of  making 
them  parties  to  the  action  in  such 
a  sense  that  they  would  be  bound  by 
the  proceedings  had  therein.  The  rul- 
ings of  courts  on  this  question  are  in 
several  States  controlled  by  the  pe- 
culiar provision  of  their  statutes;  as 
when  provision  is  made  on  the  dis- 
solution of  the  injunction  for  a  refer- 
ence to  ascertain  damages,  in  which 
case  it  is  held  that  notice  to  the 
surety     is    desirable,     even     if     not 


383 


§241 


Liability  of  Sueeties. 


that  the  damages  may  be  assessed  in  the  injunction  suit,  as  between 
the  parties  thereto,  but  that  the  assessment  affects  the  sureties  in 
the  bond  only  as  it  fixes  the  liability  of  their  principal,  and  thi^ 
determines  the  amount  to  be  recovered  on  the  bond.67 

§  241.  Same  subject ;  in  Arkansas. — In  Arkansas  a  statute  pro- 
viding for  the  summary  assessment  of  damages  in  the  injunction 
suit,  on  the  dissolution  of  the  injunction,  has  been  held  to  apply 
only  or  mainly  where  the  enforcement  of  a  judgment  is  enjoined. 
An  injunction  to  prevent  the  sale  of  particular  property  is  not 
within  the  statute,  and  it  is  error  to  award  damages  on  dissolving 
it.68     And  upon  the  dissolution  of  an   injunction  to  restrain   a 


strictly  necessary.  Hill  v.  Thomas, 
19  S.  C.  230;  Jordan  v.  Volkenning, 
72  N.  Y.  300.  In  some  States,  while 
it  is  held  under  their  practice  that 
damages  may  be  assessed  in  the  prin- 
cipal cause,  yet  it  is  said  that  the 
better  doctrine  is  to  require  a  sep- 
arate suit  upon  the  bond.  Hayden  v. 
Keith,  32  Minn.  277,  20  N.  W.  195. 
In  Texas,  while  under  their  decisions 
damages  may  be  assessed  in  the  orig- 
inal action,  the  court  recognizes  the 
fact  that  the  law  generally  is  that, 
'  in  the  absence  of  an  express  provi- 
sion, a  statute  authorizing  judgment 
to  be  rendered  against  the  sureties  on 
an  injunction  bond  for  the  damages 
for  wrongfully  suing  out  the  writ,  tho 
sureties  must  be  cited,  or  an  inde- 
pendent action  must  be  brought  on 
the  bond.'  Coates  v.  Caldwell,  71 
Tex.  19.  8  S.  W.  922.  The  weight  of 
authority  undoubtedly  is  that  in  case 
of  a  bond  conditioned  like  that  in 
controversy,  and  in  the  absence  of 
express  statutory  provisions  author- 
izing it,  the  court  cannot,  in  the  orig- 
inal action,  assess  damages  against 
the  sureties.  The  proper  mode  in  such 
cases  is  by  an  action  directly  on  the 
bond,  which  affords  the  sureties  op- 


portunities for  a  day  in  court.  In 
Fountain  v.  West,  68  Iowa,  380.  27 
N.  W.  264,  the  plaintiff  gave  a  bond 
conditioned  to  '  pay  all  damages 
which  might  be  adjudged  against 
him  by  reason  of  the  injunction,  and 
pay  the  judgment,  the  collection  of 
which  was  enjoined,  if  so  adjudged 
against  him.'  The  injunction  was 
dissolved.  An  action  was  brought  on 
the  bond.  It  was  held  that  damages 
could  not  be  adjudged  in  the  original 
action,  that  no  such  issue  could  be 
joined  therein  and  that  the  damages 
could  not  be  definitely  ascertained 
until  the  injunction  was  dissolved. 
It  is  there  said:  'The  statute  con- 
templates, and  the  bond  sued  on 
covers,  such  damages  as  may  be  ad- 
judged against  the  obligors  in  an 
action  brought  to  determine  whether 
any  damages  have  been  sustained.' 
The  reasoning  of  the  opinion  applies 
to  the  case  at  bar,  and  is  fully  sup- 
ported by  the  cases,  so  far  as  a  bond 
like  that  in  controversy  is  concerned." 

67.  Sturgis  v.  Knapp,  33  Vt.  486, 
521. 

68.  Stanley  v.  Bonham,  52  Ark. 
354,  12  S.  W.  706.  See  Marshall  v. 
Green,  24  Ark.  411,  as  to  the  souie- 


384 


Liability  of  Sureties.  §  242 

trespass  the  court  has  no  right  in  the  original  action  to  assess  the 
damages  caused  by  the  injunction,  but  will  remit  the  parties  to 
their  action  on  the  injunction  bond.69  When  the  court  has  the  right 
to  assess  the  damages  in  the  injunction  suit  on  the  dissolution  of 
the  injunction,  judgment  therefor  shall  be  rendered  against  the 
party  who  obtained  the  injunction,  and  the  assessment  shall  be 
conclusive  against  his  surety.70  In  a  suit  for  an  injunction  to 
restrain  the  collection  of  taxes,  a  court  of  equity,  on  dissolving  the 
injunction,  cannot  proceed  to  assess  the  damages  thereby  caused 
and  render  judgment  therefor  against  the  sureties.71  But  the  de- 
fendant's remedy  for  his  damages  is  by  an  action  at  law  upon  the 
injunction  bond.72 

§242.  Same  subject;  in  Louisiana. — In  order  to  prevent  the 
abuse  of  injunctions,  which  formerly  existed  in  Louisiana,  where 
a  judgment  debtor  sought  to  delay  the  course  of  justice  by  enjoin- 
ing the  execution  of  a  money  judgment  against  him,  statutes  were 
passed  which  greatly  enlarged  the  liability  of  the  sureties  who 
went  on  his  injunction  bond,  and  practically  made  them  co-plain- 
tiffs with  him  in  the  injunction  suit.73  Thus  in  1884  a  judgment 
debtor  obtained  an  injunction  to  restrain  the  execution  of  a  money 
judgment  against  him,  and  the  surety  on  the  injunction  bond  was 
held  not  only  to  be  constructively  before  the  court,  but  to  be  as 
liable  as  a  party  as  he  would  have  been  if  his  name  had  bren  in- 
serted in  the  injunction  petition  and  appeared  at  every  subsequent 
stage  of  the  suit,  so  that  he  was  not  entitled  before  the  issuing  of 
execution  against  him  to  notice  of  the  judgment  of  dissolution, 
with  its  award  of  damages.74 

what  similar  effect  of  a  former  stat-  71.  Bailey  v.  Gibson,  20  Ark.  472. 

ute.  72.  Clayton  v.  Martin,  31  Ark.217. 

€9.  Greer  v.  Stewart,  48  Ark.  21,  73.  La.  Rev.  Sts.    (187G),  §  3735. 

2  S.  W.  251.     See  Fowler  v.  Scott   21  74.  Friedman    v.    Adler,    36    La. 

Ark.     117.     The  defendant  may  sue  Ann.    384.    per   Manning,   J.:      "The 

on  the  bond  without  waiting  for  final  question   is   thus   squarely   presented, 

decree  in  the  injunction  suit  or  suing  is   the   surety   to  an   injunction   bond 

out  execution  on  the  decree.    Sizer  v.  entitled  to  notice  of  the  judgment  of 

Anthony,  22  Ark.  405.  dissolution  with   damages,   when   the 

70.  Mansfield  s  Digest,  §  3766.  injunction  has  arrested  the  execution 

25 


§243 


Liability  of  Sureties. 


§  243.  Same  subject  in  Louisiana  continued. — Where  the  in- 
junction is  not  to  restrain  the  execution  of  a  money  judgment,  the 


of  a  money  judgment.    The  surety  on 
an   injunction   bond    is    considered   a 
plaintiff  in  the  suit.     Fifty  years  ago 
the    facility   with   which    injunctions 
were  obtained  under  our  code  of  prac- 
tice   had    already    become   a    fruitful 
source  of  abuse,  to  prevent  the  con- 
tinued  recurrence  of  which  the  stat- 
utes of  1831  and  1833  attached  to  the 
suretyship     of     such     bonds     conse- 
quences    more     enlarged     and     more 
stringent  than  had  hitherto  attended 
any    act   of    suretyship.      And    these 
provisions  were  designed  to  deter  per- 
sons  from  assisting  parties  who  had 
been  judiciously   condemned   in  evad- 
ing or  delaying  the  course  of  justice 
in  cases  wherein   they  were   not  en- 
titled to  relief.     The  surety  was  so 
completely  identified  with  the  enjoin- 
ing debtor  as  to  become  his  co-plain- 
tiff   ipso   facto   by    the   mere   act  of 
suretyship— a  solidary  judgment  was 
expressly  authorized  against  them  in 
the    pending    suit    if    the    injunction 
were  dissolved — and  the  solidarity  of 
obligation  was  crowned  by  fransfer- 
ing  the  surety  to  the  poaition  of  a 
principal    in    this,    that   he    was    de- 
prived of  the  plea  of  discussion,  Code 
Prac,  art.  304;   Denton  v.  Erwin,  5 
La.    Ann.    21.      In    construing    these 
anomalous  and  rigorous  requirements 
the  courts  have  lent  their  hearty  aid 
to  the  interpretation  that  would  best 
effectuate  the  intention  of  the  legisla- 
ture,  and   in   furtherance  of   it   have 
held  that  the  surety  was  not  merely  a 
nominal  party  to  the  injunction  suit, 
but  such  a  real  actual  party  that  he 
is  entitled  to  be  cited  on  appeal  when 
it,  is  by  petition.     Gibson  v.  Selby,  3 
La.  Ann.  318;  and  when  the  appeal  is 
by  motion  in  open  court,  that  he  ia 


embraced  equally  with  his  principal. 
Mitchell  v.  Lay,  4  La.  Ann.  514.  And 
where  judgment  was   prayed  against 
the  wrong  person  as  surety,  the  court 
gave  judgment  against  him  who  was 
really  surety      I'nion  Bank  v.  Smith, 
3  Lp.  Ann.   147.     So  where  the  ver- 
dict of  the  jury  was  against  the  prin- 
cipal   in    the   injunction    bond   alone, 
and   the   judgment   was   against    him 
and    the    surety    also,    it    was    main- 
tained.   Mason    v.    Poulallier,    10    La. 
Ann.  418;  and  the  surety  may  be  con- 
demned on  the  trial  of  a  rule  to  dis- 
solve as  well  as  on  the  merits,  Betts 
v.  Mougin,  15  La.  Ann.  52;  and  he  is 
so  perfectly  and  irrevocably  bound  by 
the    petition,    affidavit,    order    of    in- 
junction,  etc.,    that    they     cure    the 
omission    of    any    description   of    the 
proceedings    in    the    bond.      Green    v. 
Huey.  23  La.  Ann.  704.    We  need  not 
say  more  of   Verges   v.   Gonzales,   33 
La.  Ann.  410,  than  that  it  was  not  a 
case  where  the  execution  of  a  money 
judgment  was  arrested.     It  is  man- 
ifest   from    this   catena   of   decisions, 
that  the  legal  presence  of  the  surety 
in  court  is  not  a  mere  fiction  of  law, 
nor  is  it  correct  to  say  that  he  is  only 
constructively  before  the  court,  since 
the  law  proprio  vigore  makes  him  a 
party,   not  nominally  as   is  a  sheriff 
in  an  injunction,  but  really  and  actu- 
ally stamped  ineftaceably  with  all  the 
attributes,   qualities,    rights   and   lia- 
bilities that  appertain  to  and  inhere 
in   a    party   as    completely   as    if   his 
name  had  been  inserted  in   the   peti- 
tion and  had  appeared  at  every  sub- 
sequent stage  of  the  suit.     If  in  an 
appeal  by  motion  he  is  embraced  just 
as  is  his  principal,  and  in  an  appeal 
by  petition  he  ia  entitled  to  service 


38G 


Liability  of  Sureties. 


§  243 


sureties  on  the  injunction  bond  are  not  deemed  parties  to  the 
injunction  suit,  and  in  order  to  recover  damages  against  them  the 
defendant  must  sue  on  the  injunction  bond.75  Thus  in  a  suit  to 
have  an  administrator  dismissed  for  maladministration,  and  to 
enjoin  the  sale  of  property  advertised  for  sale  under  an  order  of 


when  his  principal  is  thus  entitled; 
he  is  likewise  entitled  to  notice  of 
judgment  only  when  his  principal  is, 
and  therefore  when,  as  in  this  case, 
the  defendant  appeared  and  defended 
the  suit,  and  is  thus  not  entitled  to 
notice  of  judgment,  the  surety  has  no 
cause  of  complaint  when  the  execu- 
tion issued  upon  the  judgment  of 
dissolution  and  for  damage3  against 
him  after  the  expiry  of  the  delay  for 
an  appeal,  without  notice  to  him  of 
the  judgment.  It  will  be  observed 
throughout  that  we  are  considering 
and  deciding  alone  the  case  where  the 
judgment,  the  execution  of  which  is 
arrested,  is  a  judgment  for  the  pay- 
ment of  money."  In  Mora  v.  Avery, 
22  La.  Ann.  417,  the  plaintiff  en- 
joined the  execution  creditor  and 
sheriff  from  selling  the  seized  goods; 
the  answer  was  a  general  denial,  and 
prayed  for  twenty  per  cent,  dam- 
ages on  the  amount  of  the  enjoined 
judgment;  the  court  below  dissolved 
the  injunction  and  awarded  the 
twenty  per  cent,  damages  against 
plaintiff,  and  on  appeal  the  judgment 
was  amended  so  as  to  include  the 
surety  and  to  condemn  him  in  solido 
with  the  principal  to  pay  the  dam- 
ages. See.  also,  Mason  v.  Fuller,  12 
La.  Ann.  68;  Vicksburg,  etc.,  R.  Co. 
v.  Barksdale,  15  La.  Ann.  465. 

75.  In  Sheen  v.  Stothart,  29  La. 
Ann.  630,  which  was  an  action  to  en- 
join trespass,  the  District  Court  on 
appeal  decreed  that  the  demand  of 
plaintiffs  be  rejected  and  that  de- 
fendant recover  against  them  and 
their  surety  on  the  injunction  bond  in 


solido,  two  hundred  dollars  damages 
as  attorney's  fees.  One  of  the  rea- 
sons urged  by  plaintiff's  counsel  to 
obtain  a  rehearing  was,  that  "  dam- 
ages can  be  allowed  in  the  decree  dis- 
solving an  injunction  in  only  those 
cases  in  which  execution  of  a  money 
judgment  has  been  superseded  by  the 
writ."  On  appeal  to  the  Supreme 
Court  that  court  said:  "  In  this  .ac- 
cording to  our  jurisprudence,  he  is 
right.  As  to  the  sureties  on  such 
bonds  the  recourse  should,  we  admit, 
be  by  a  direct  action  on  their  obli- 
gations. .  .  .  It  is  therefore  ad- 
judged that  defendant's  claim  for 
damages  be,  and  the  same  is  hereby 
disallowed,  as  in  case  of  nonsuit,  and 
their  action  on  the  injunction  bond  be 
specially  reserved."  In  Crescent  City, 
etc.,  Co.  v.  Larrieux,  30  La.  Ann. 
740,  the  court  said :  "  We  think  the 
court  did  not  err,  as  it  is  well  set- 
tled that  on  trial  of  motions  to  dis- 
solve injunctions  not  issued  against 
money  judgments  damages  are  not  to 
be  allowed.  The  sureties  are  not 
parties  in  such  cases.  The  party  is 
left  to  his  recourse  on  the  bond."  In 
Jacobs  v.  Augustin,  3  La.  Ann.  476, 
the  court  said:  "It  has  been  repeat- 
edly held  that  the  Act  of  1831  pro- 
viding for  the  assessing  of  damages 
on  the  dissolution  of  injunctions  ap- 
plies only  to  cases  of  judgments  en- 
joined. In  other  cases  the  party  en- 
joined is  left  to  his  remedy  upon  the 
bond."  Hyde  v.  Brashear,  19  La. 
402;  Morgan  v.  Driggs,  17  La.  176, 
183.  See,  also.  Verges  v.  Gonzales, 
33  La.  Ann.  410,  414. 


387 


§§  244,  245  Liability  of  Sureties. 

court,  there  was  judgment  against  plaintiff  and  dissolving  the 
injunction,  but  it  was  held  that  as  the  injunction  was  not  to  restrain 
a  money  judgment  it  was  not  governed  by  the  statutes  of  1831 
and  1833,  and  that  defendant's  remedy  for  damages  was  by  a  suit 
on  the  injunction  bond.76 

§  244.  Same  subject  in  New  York. — The  amount  of  damages 
caused  by  an  injunction,  as  ascertained  by  the  court,  or  by  a  referee 
and  confirmed  by  the  court,  pursuant  to  section  623  of  the  New 
York  Code  of  Civil  Procedure,  is  conclusive  upon  the  sureties  to  the 
amount  named  in  the  bond,  but  payment  can  be  enforced  only  by 
an  action  upon  the  injunction  bond.77  A  reference  and  report  upon 
such  damages  duly  confirmed  are  conclusive  upon  the  sureties  in 
an  undertaking  providing  for  their  being  "  ascertained  by  reference 
or  otherwise,"  though  the  sureties  are  not  parties  or  notified  of  the 
reference.78  The  proceeding  to  ascertain  damages  whether  by  the 
court  or  the  referee  is  not  a  proceeding  in  the  injunction  aclion,79 
and  it  is  discretionary  with  the  court  to  direct  that  the  sureties 
have  notice  of  the  proceeding;80  but  if  the  sureties  are  not  notified, 
any  gross  exaggeration  as  to  his  damage  made  by  the  defendant  a3 
a  witness  before  the  referee  in  the  absence  of  the  sureties,  is  suffi- 
cient evidence  of  fraud  to  invalidate  the  assessment  of  damages.81 
The  sureties  cannot  be  bound  in  damages  beyond  the  amount 
specified  in  the  bond.82  The  order  confirming  the  referee's  report 
as  to  damages  is  appealable  by  the  sureties  to  the  Court  of 
Appeals.83 

§  245.  Same  subject ;  in  South  Carolina,  Missouri,  Texas. — In 
South  Carolina  it  is  decided  that  upon  the  dissolution  of  an  injunc- 

76.  Willis  v.   Elam,   28   La.   Ann.  odist  Churches  v.   Barker,   18  N.  Y. 
857.  463,    4G6. 

77.  Lawton  v.  Green,  64  N.  Y.  81.  Jordan  v.  Volkenning,  72  N. 
326.  Y.  300. 

78.  Methodist  Churches  v.  Barker,  82.  Leavitt  v.  Dabney,  9  App.  Pr. 
18  N.  Y.  463.  N.  S.  373. 

79.  Lawton  v.  Green,  64  N.  Y.  83.  Newton  v.  Russell,  87  N.  Y. 
326.  330.  527.     See  Hotchkiss  v.  Pls>.tt,  7  Hun, 

80.  Code  Civ.  Pro.,  §   623;   Meth-  56. 

388 


Liability  of  Sureties.  §  245 

tion,  the  damages  caused  by  the  injunction  and  recoverable  under 
a  bond  whereby  the  obligors  bound  themselves  "  pursuant  to  the 
statute,"  may  be  summarily  ascertained  by  a  reference  in  the  prin- 
cipal action  without  the  delay  and  expense  of  another  action,  and 
this  assessment  may  be  enforced  by  order  of  the  court  and  by 
execution  against  all  the  obligors,  including  the  sureties,  provided 
they  have  all  been  notified  of  the  reference  and  thus  made  parties 
to  it.84  Under  the  Missouri  Revision  1879,  section  2713,  provid- 
ing that  on  the  dissolution  of  an  injunction,  damages  shall  be 
assessed  and  judgment  rendered  against  the  "  obligors  on  the- 
bond,"  the  sureties  have  a  right,  on  motion  by  defendant  in  the 
original  action  for  such  assessment  and  judgment,  to  be  let  in  to 
defend  and  to  require  a  jury;  for  as  the  statute  authorizes  the 
rendering  of  a  judgment  for  damages  against  the  sureties,  without 
other  jurisdiction  over  them  than  that  acquired  by  the  filing  of  the 
bond,  they  are  in  court  to  answer  for  a  breach  of  the  bond  from 
the  moment  the  injunction  is  dissolved,  and  are  entitled  to  all  the 
rights  of  parties  litigant.555  And  as  they  are  concluded  by  the 
judgment  for  damages  against  their  principal,  if  it  is  free  from 
fraud,  though  obtained  against  him  alone,  they  are  entitled  to  an 
appeal  from  it.88    But  until  some  proceeding  be  had  to  assess  the 

84.  Hill  v.  Thomas  19  S.  C.  230  old  rule  of  court,  the  collection  of 
— the  court:  "It  is  true  that  this  costs  was  enforced  against  a  surety- 
court  has  held  in  the  case  of  Earle  whose  application  in  terms  acknowl- 
v.  Cureton,  13  S.  C.  19,  that  a  judg-  edged  his  liability  if  the  plaintiff 
ment  for  costs  entered  against  one  failed  to  recover.  It  seems  to  us 
who  was  surety  for  costs,  without  any  there  can  be  no  great  objection  to  the 
proceeding  against  him  to  charge  him  summary  mode  of  enforcing  the  as- 
upon  his  obligation,  is  wholly  void;  sessment  found  under  reference,  by 
but  that  was  where  no  proceeding  of  order,  without  the  delay  and  expense 
any  kind  had  been  taken  against  the  of  another  action;  provided  always 
surety.  By  signing  the  undertaking  that  the  surety  is  regularly  notified 
under  the  law  as  it  now  stands,  in  and  thus  made  a  party  to  the  pro- 
wliich  the  parties  obligated  them-  ceedings  to  assess  the  damages." 
selves  '  pursuant  to  the  statute.'  it  85.  Nolan  v.  Jones,  108  Mo.  431, 
may    be    considered    that   the   surety  18  S.  W.   1107. 

waived   a   trial   by   jury   in   assessing  86.  Nolan   v.  Jones.    108  Mo.   431, 

damages,  and  that  the  summary  pro-  18  S.  W.  1107;  St.  Louis  Zinc  Co.  v. 

ceeding  by  reference  is  somewhat  an-  Hesselmeyer.   50  Mo.   180;    Farrar  v. 

alagous  to  that  by  which  under  the  Parker,  3  Allen   (Mass.),  556. 

389 


§245 


Liability  of  Subeties. 


damages  against  the  sureties,  they  cannot  be  deemed  to  be  parties 
in  the  injunction  suit,  nor  to  have  such  an  interest  in  a  judgment 
therein  against  their  principal  as  will  entitle  them  to  an  appeal 
therefrom.87  The  obligation  of  injunction  sureties  under  the  Mis- 
souri statute  is  not  to  pay  all  damages  that  the  injunction  may 
cause  to  defendant,  but  to  pay  such  as  the  court  shall,  upon  the 
dissolution  of  the  injunction,  adjudge  against  the  plaintiff;  and 
until  they  have  been  adjudged  in  connection  with  the  injunction 
suit  no  action  can  be  maintained  against  the  sureties,  on  the  bond.88 
In  Texas,  it  would  seem  that  the  defendant  upon  proper  pleadings 
in  reconvention  of  his  loss  by  the  wrongful  suing  of  the  injunction, 
and  proof  thereof,  may  recover  his  damages  therefor  in  the  original 
suit,  without  service  of  citation  upon  the  sureties  of  the  plea  in 
reconvention.89 


As  to  the  conclusion  of  the  sureties 
by  the  judgment  and  assessment 
against  their  principal,  see  Towle  v. 
Towle,  46  N.  H.  434;  Methodist 
Churches  v.  Barker,  18  N.  Y.  466; 
Hotchkiss  v.  Piatt,  7  Hun  (N.  Y.), 
56,  aff'd  66  N.  Y.  620;  McAllister  v. 
Clark,  86  111.  236. 

87.  St.  Louis  Zinc  Co.  v.  Hessel- 
mayer,  50  Mo.  180.  But  see  in  Louisi- 


ana, Avegno  v.  Johnston,  22  La.  Ann. 
400;  Lane  v.  Roselius,  23  La.  Ann. 
258. 

88.  Dorriss  v.  Carter,  67  Mo.  544; 
Kennedy  v.  Hammond,  16  Mo.  341; 
Corder  v.  Martin,  17  Mo.  41. 

89.  Coates  v.  Caldwell.  71  Tex.  19, 
8  S.  W.  922;  Sharp  v.  Schmidt,  62 
Tex.  263. 


390 


Violations  and  Punishment  of. 


CHAPTER   VIII. 

Violations  and  Punishment  of. 

SECTION  246.  Void  injunction  need  not  be  obeyed — If  collusive. 

247.  Must  be  obeyed,  though  irregular. 

248.  Violation   though   no   service — Knowledge  enough. 
248a.  Same  subject — Application  of  rule. 

249.  Excuse  of  violation. 

250.  Same   subject   continued — Effect  of  dissolution. 
250a.  Same  subject — Effect  of  modification  of  injunction. 

251.  What  constitutes   violation. 

252.  Same  subject — Injunction  to  protect  right  of  way. 

253.  Same  subject — Prior  acts — Changed  situation. 

254.  Same  subject — Illustrations. 
254a.  Where  injunction  conditional. 

255.  Violation  of  patent  injunctions. 

256.  Violation  by  parties — Generally. 
256a.  Violation  by  complainant. 
256b.  Violation  by  one  not  a  party. 

257.  Violation  by  agents  and  servants. 

258.  Same  subject — Violation  by  attorneys. 

259.  Violation  excused. 

260.  Obeying  injunction  as  far  as  clear — Changed  situation. 

261.  Violation  after  determined  by  scope  of  terms. 

262.  Contempt  proceedings  to  punish  violations. 

263.  Same  subject  continued. 

264.  Collateral  attack  of  injunction  in  contempt  proceedings. 

265.  Punishment  in  Iowa. 

266.  Who  may  institute  contempt  proceedings — Estoppel. 

267.  Delay  in  punishing  for  contempt. 

268.  Who  punishable  for  contempt. 

269.  Landlord  and  tenant — Husband  and  wife. 

270.  Party  punishable  on  notice.  .' 
270a.  Facts  in  mitigation. 

271.  Motive,  intent  or  belief  as  excuse. 

272.  Disclaimer  of  contempt  as  excuse  or  in  mitigation. 

273.  Advice  of  counsel  as  an  excuse. 

274.  Contempt  of  receiver. 

275.  Punishing  contempt  in  supplementary  proceedings. 
275a.  Violations  by  corporations — Officers  and  employees. 

276.  Contempt  proceedings   against  corporations — Affidavits. 
276a.  Injunction  against  partnership — Violations  of. 

277.  Who  can  punish  violations. 


391 


§  246  Violations  and  Punishment  of. 

Section  278.  Punishment  in  Federal   courts. 

279.  In  England. 

279a.  Payment  of  damages. 

280.  Indemnity  fine  for  contempt — New  York. 
280a.  Same  subject  continued. 

281.  Punishing  contempt  by  annulling  what  has  been  done. 
281a.  Compelling  restoration  of  status. 

282.  Party  in  contempt  not  entitled  to  jury. 

283.  Violation  as  contempt  pending  appeal. 
283a.  Same  subject  continued. 

284.  Appeals  from  orders  in  contempt  proceedings. 
284a.  Judgment — .Recital  of   facts,  in. 

Section  246.  Void  injunction  need  not  be  obeyed;  if  collusive. 

—If  the  court  granting  an  injunction  has  no  jurisdiction  of  the 
parties  and  subject  matter,  the  injunction  is  void  and  need  not  be 
obeyed.  Thus,  a  Colorado  injunction  was  held  to  be  absolutely 
void,  because  the  District  Court  of  Araphoe  county  had  no  juris- 
diction of  the  subject  matter,  namely,  land  in  Rio  Grande  county, 
and  had  no  jurisdiction  of  the  party  enjoined,  because,  being  man- 
datory, it  was  granted  without  notice  to  defendant,  though  such 
notice  was  imperatively  required  by  the  Colorado  Code.1  A  court 
has  no  authority  to  issue  an  injunction  in  a  case  not  within  its 
jurisdiction,  and  cannot  punish  a  disregard  of  the  injunction 
granted  as  a  contempt,2  as  an  injunction  which  is  void,  because 
issued  by  a  court  without  jurisdiction,  may  be  treated  as  having 
no  existence.3  So  it  is  decided  in  a  recent  case  that  where  an  order 
of  injunction  is  void  for  want  of  jurisdiction  of  the  person  on  the 
part  of  the  court  granting  it  there  is  no  basis  for  contempt  pro- 
ceedings.4 And  the  rule  just  laid  down  is  applied  where  a  pre- 
liminary injunction  is  void,  because  its  effect  is  to  dnspose  of  the 

1.  Smith  v.  People,  2  Col.  App.  99,  is  not  punishable  as  contempt.    Gue- 

29  Pac.  924.     Where  the  inhabitants  belle  v.   Epley,    1   Col.  App.    199,  28 

of  a  part  of  a  county  sought  to  be  Pac.   89. 

incorporated  into  a  town  have  com-  2.  State  v.  Voorhits,  37  La.  Ann. 

plied   with    all    the    requirements    of  605. 

the  statute  providing  for  such  organ-  3.  Ex  parte  Fisk,   113  U.  S.  713, 

ization,  and  the  commissioners  have  718,   5  -S.  Ct.   724,  28  L.  Ed.    1117; 

called    an  election,    a    court    has    no  Brown  v.   Moore,   61    Cal.   432,   435; 

jurisdiction   to   enjoin   such   election,  State  v.  Judge,  34  La.  Ann.  741. 

and  a  disobedience  of  such  injunction  4.  Lewis  v.  Peck,  154  Fed.  273. 

392 


Violations  and  Punishment  of. 


§247 


merits  and  divest  property  rights  without  a  trial.5  If  an  injunction 
is  the  result  of  collusion  between  the  parties,  it  is  void^  and  may 
be  disregarded  by  any  one.6 

§  247.  Must  be  obeyed,  though  irregular. — Unless  an  injunc- 
tion order  is  void  upon  its  face,  for  lack  of  jurisdiction  on  the  part 
of  the  judge  who  granted  it,  it  must  be  obeyed,  however  erroneous 
the  granting  of  it  may  have  been,  until  it  is  dissolved  on  motion 
or  appeal,  or  some  other  method  of  direct  review  in  the  action  in 
which  it  was  granted.7  Thus,  though  the  granting  of  an  injunction 
in  aid  of  an  attachment  may  be  erroneous,  if  made  before  the 
service  of  the  attachment,  yet  the  error  does  not  go  to  the  jurisdic- 
tion, and  the  injunction  must  be  obeyed  until  it  is  dissolved.8  And 
an  omission  to  state,  in  a  restraining  order,  the  grounds  on  which 
it  is  allowed,  as  required  by  a  Code  provision,  is  a  mere  irregu- 
larity, which  will  not  excuse  disobedience  of  the  order.10    Again, 


5.  Calvert  v.  State,  34  Neb.  616, 
52  N.  VV.  687. 

6.  State  v.  Rush  County  Com'rs, 
35  Kan.  150,  10  Pac.  535. 

7.  Illinois. — Kerfoot  v.  People,  51 
111.  App.  409. 

Indiana.— Central  Union  Tel.  Co.  v. 
State.  110  Ind.  203,  12  N.  E.   136. 

Iowa.  —  Hatlestad  v.  Hardin, 
County  District  Court  (Iowa,  1908), 
114  N.  W.  628;  State  v.  Baldwin,  57 
Iowa,  266,  10  N.  W.  645. 

Kansas. — Billard  v.  Erhart,  35 
Kan.  616,  12  Pac.  42. 

Louisiana. — State  v.  Levy,  36  La. 
Ann.    941. 

New  Jersey. — Forrest  v.  Price,  52 
N.  J.  Eq.   16,  29  Atl.  215. 

New  York. — People  v.  McKane,  78 
Hun,  154,  28  N.  Y.  Supp.  981; 
Koehler  v.  Farmers  &  Drovers  Nat. 
Bank.  53  Hun,  637,  6  k  Y.  Supp. 
470;  Peck  v.  Yorks,  32  How.  Prac. 
408;  Moat  v.  Holbein,  2  Edw.  Ch. 
188;  compare  State  v.  Milligan,  3 
Wash.   144,  28  Pac.  369;  Koehler  v. 


Dobberpuhl,  56  Wis.  497,  14  N.  W. 
631. 

8.  People  ex  rel.  Cauffman  v.  Van 
Buren.  136  N.  Y.  252,  32  N.  E.  775. 

The  court  said:  "No  matter  how 
erroneous  the  action  of  the  court  may 
have  been  in  taking  cognizance  of 
the  suit  and  awarding  a  mandatory 
process,  unless  there  has  been  an  en- 
tire absence  of  judicial  authority  to 
act  in  the  premises  it  was  the  duty 
of  the  defendants  to  obey  its  com- 
mands, until  they  had  been  revoked 
by  an  order  made  in  the  action  in 
which  they  had  been  issued  either 
upon  motion  or  appeal,  or  by  some 
other  method  of  direct  review."  Per 
Maynard,  J.,  citing  People  v.  Sturte- 
vant,  9  N.  Y.  263.  See  Sheffield  v. 
Cooper.  21  App.  Div.   (M.  Y.)   518. 

10.  Daly  v.  Amberg,  13  N.  Y. 
Supp.  379.  aff'd  126  N.  V/.  490.  27  N. 
E.  1038.  See,  also.  Moat  v.  Holbein, 
2  Edw.  Ch.  188;  Sullivan  v.  Judah,  4 
Paige,  444;  Cape  May  R.  Co.  v.  John- 
son, 35  M.  J.  Eq.  422,  425.     An  in- 


393 


§248 


Violations  and  Punishment  of. 


it  is  no  defense  to  proceedings  to  punish  for  contempt  for  violating 
an  injunction,  that  the  injunction  was  granted  on  papers  neither 
making  nor  tending  to  make  out  a.  sufficient  case  for  injunction.11 
And  the  fact  that  an  injunction  is  too  broad  in  its  terms,  and 
broader  than  the  prayer  of  the  bill,  is  not  a  sufficient  excuse  for 
its  violation.12  In  Kansas,  if  a  defendant  knowingly  violates  an 
injunction  order  which  is  irregular  in  form  and  based  on  erroneous 
though  not  void  proceedings,  he  is  liable  to  punishment  for  con- 
tempt.13 

§  248.  Violation  though  no  service ;  knowledge  enough. — 
Persons  who  have  actual  knowledge  of  the  existence  and  effect  of 
an  injunction  order  are  bound  by  it,  though  it  is  not  personally 
served  or  is  defectively  served  on  them,  and  will  be  liable  to 
punishment  for  a  violation  of  its  terms.14  So  a  party  is  bound  to 
obstain  from  violating  an  injunctional  order  directed  to  himself 
from  the  time  he  knows  of  its  issue  although  it  may  not  yet  have 


junction,  however  improvidently 
granted,  is  valid  until  it  is  vacated 
by  the  court  granting  it  or  reversed 
on  appeal,  and  until  such  time  a 
party  disobeying  it  may  be  punished 
for  contempt.  Erie  R.  Co.  v.  Ram- 
sey. 45  N.  Y.  637. 

11.  Koehler  v.  Farmers'  &  Drov- 
ers' Nat.  Bank  of  Somers,  6  N.  Y. 
Supp.  470,  17  Civ.  Pro.  307,  aff'd 
117  N.  Y.  661,  22  N.  E.  1134. 

12.  People  v.  Pendleton,  64  N.  Y. 
622;  Richards  v.  West,  2  Green  Ch. 
456. 

13.  Gen.  Stat.  1889,  §  4342;  State 
ex  rel.  v.  Pierce,  51  Kan.  241,  32  Pac. 
924;  Billard  v.  Erhart,  35  Kan.  616, 
12  Pac.  42.  Where  a  court  has  juris- 
diction, an  order  granting  an  injunc- 
tion, though  it  may  be  erroneous,  is 
not  void,  and  its  force  is  not  im- 
paired pending  an  appeal.  Fleming 
v.  Patterson,  99  N.  C.  404,  6  S.  E. 
396,  per  Merrimon,  J.:     *'  The  order 


granting  the  injunction,  though  it 
may  have  been  erroneous,  was  not 
void,  and  continued  in  force  until  it 
should  be  dissolved,  unless  it  should 
be  corrected  by  appeal  to  this  court, 
and  such  appeal  would  not  have  the 
effect  to  dissolve  it  or  impair  its 
force  pending  the  appeal."  Green  v. 
Griffin,  95  N.  C.  50.  See,  also  Cen- 
tral Union  Telephone  Co.  v.  State, 
110  Ind.  203,  10  N.  E.  922,  12  N.  E. 
136. 

14.  United  States. — Ex  parte  Len- 
non,  64  Fed.  320,  12  C.  C.  A.  134,  22 
U.  S.  App.  561. 

California. — Golden  Gate  Hydraulic 
Mining  Co.  v.  Superior  Court,  65  Cal. 
187,  3  Pac.  628. 

Florida. — Thebaut  v.  Canova,  11 
Fla.   143. 

Qeorgla. — Anderson  v.  Hall  (Ga. 
1907),  58  S.  E.  43;  Murphy  v.  Mar- 
ker, 115  Ga.  77,  41  S.  E.  585. 

Illinois. — O'Brien  v.  People,  216  111. 


394 


Violations  and  Punishment  of. 


§248 


been  served  on  him.15  And  though  a  vacation  of  an  order  might 
have  been  had  either  by  motion  to  dissolve  or  on  a  trial  on  the 
merits  one  may  be  punished  for  contempt  where  he  knowingly 
disobeys  the  order.16  And  where  an  order  of  injunction  forms  part 
of  a  decree  rendered  in  regular  course,  upon  issue  joined  by 
answer,  the  parties  to  the  suit  are  bound  to  take  notice  thereof, 
without  being  served  with  a  certified  copy  of  the  decree.17  So  it  is 
decided  that  one  who  has  actual  notice  of  an  order  for  the  imme- 
diate issuance  of  an  injunction  and  disobeys  the  terms  of  it  as 
ordered,  is  guilty  of  contempt,  though  the  injunction  has  not  been 
served  upon  him,  or  issued  or  the  order  personally  drawn  up.18 
So  in  a  recent  case  in  Georgia  it  is  decided  that  one  against  whom 
an  injunction  has  been  granted  is  bound  to  obey  the  same  as  soon 
as  he  is  informed  of  the  fact  that  the  injunction  has  been  granted 
although  he  may  not  have  been  then  served  with  a  copy  of  the 
writ.19  And  in  New  Hampshire  it  has  been  determined  that  a 
person  who  knowingly  violates  an  injunction  before  he  has  formal 
notice  of  it  and  before  the  order  or  decree  is  extended  upon  the 
record,  is  liable  to  arrest  and  to  the  same  penalty  as  if  a  copy  of 
the  writ  of  injunction  had  been  read  and  delivered  to  him.20  So 
persons  who  participate  in  acts  with  knowledge  that  such  acts  are 


354,  75  N.  E.  108;  Danville  Bank  & 
T.  Co.  v.  Parks,  88  I'l.  170. 

Massachusetts. — See  Winslow  v. 
Mayson,  113  Mass.  411. 

Nebraska. — Miles  v.  State  (Neb. 
1905),  105  N.  W.  301. 

New  Hampshire. — Fowler  v.  Beck- 
man,  66  N.  H.  424.  30  Atl.  1117. 

New  Jersey. — Haring  v.  Kauffman, 
13  N.  J.  Eq.  397. 

New  York. — Koehler  v.  Farmers'  & 
Drovers'  Nat.  Bank  of  Somers,  6  N. 
Y.  Supp.  470,  53  Hun,  637,  aff'd  117 
N.  Y.  661,  22  N.  E.  1134;  Aldinger 
v.  Pugh,  57  Hun,  181,  10"  N.  Y.  684, 
aff'd  132  N.  Y.  403.  30  N.  E.  745; 
Rochester,  H.  &  L.  R.  Co.  v.  New 
*ork,  L.  E.  &  W.  R.  Co.,  48  Hun. 
190;    Ewmg    v.    Johnson,    34  How. 


Prac.  202;  Livingston  v.  Swift,  23 
How.  Prac.   1. 

Tennessee. — Fowler  v.  Famsworth, 
1  Swan,  1,  15  Am.  Dec.  718. 

Wisconsin. — Poertner  v.  Russel.  33 
Wis.  193;  Mead  v.  Norris,  21  Wis. 
310. 

15.  Poertner  v.  Russel,  33  Wis. 
193. 

16.  Miles    v. 
105  N.  W.  301. 

17.  Hawkins    \ 
294.  26  N.  E.  43. 

18.  Winslow  v.  Nayson,  113  Mass. 
411. 

19.  Murphey  v.  Barker,  115  Ga. 
77,  41    S.   E.  585. 

20.  Fowler  v.  Beckman,  66  N.  H. 
424,  30  Atl.  1117. 


State    (Neb.    1905), 
v.     State,     126   Ind. 


395 


§  248a  Violations  and  Punishment  of. 

prohibited  by  an  injunction  order  may  be  adjudged  guilty  of 
contempt.21  In  order  to  bind  a  person  by  notice  such  notice  must 
proceed  from  a  source  entitled  to  credit  and  must  inform  the  de- 
fendant clearly  and  plainly  from  what  act  he  must  abstain.22 

§  248a.  Same  subject;  application  of  rule. — An  injunction 
against  a  corporate  body  is  binding  upon  all  persons  acting  for  the 
corporation  to  whose  knowledge  the  injunction  comes;23  and  in 
particular  if  they  have  received  written  notice  of  the  injunction, 
though  not  made  parties.24  So  where  it  appears  that  the  general 
officers  of  a  railroad  company  had  notice  of  an  injunction  at  the 
time  the  work  alleged  to  have  been  violative  of  the  injunction  was 
done,  the  company  may  be  adjudged  guilty  of  contempt,  though 
strict  service  of  the  injunction  order  had  not  been  made.25  And  in 
a  case  in  Ohio  where  an  action  was  brought  to  enjoin  the  mis- 
appropriation of  money  by  the  council  it  was  decided  that  the 
injunction  being  granted  by  a  court  of  competent  jurisdiction  or 
a  judge  thereof  if  any  members  of  the  council  violated  the  injunc- 
tion after  notice  thereof  had  been  served  upon  them  they  were 
liable  to  be  punished  for  the  same  as  for  a  contempt  of  the  authority 
of  the  court.26  And  where  defendant  had  been  enjoined  from  pro- 
curing a  divorce,  and  had  notice,  no  matter  how  obtained,  that 
the  injunction  had  been  issued,  he  is  liable  for  contempt  for  violat- 
ing it  to  the  same  extent  as  if  it  had  actually  been  served  on  him 
in  writing.27     Notice  by  telegram  may  also  be  sufficient  but  in 

21.  People  v.  Marr,  88  App.  Div.  its  contents,  and  afterwards,  appel- 
(N.  Y.)  422,  84  N.  Y.  Supp.  965.  lant  delivered   a  deed  of  conveyance 

22.  York  Mfg.  Co.  v.  Oberdick,  11  of  the  property  described  in  the 
Pa.  Dist.  R.  616.  order,  it  was  held  that  appellant  was 

23.  People  v.  Sturtevant,  9  N.  Y.  guilty  of  contempt,  and  was  properly 
263.  fined  $250  and  committed  to  jail  for 

24.  Toledo,  etc.,  R.  Co.  v.  Penn-  six  months.  People  v.  Barnes,  7  N. 
sylvania  Co.,  54  Fed.  746.  Y.  Supp.  802. 

Where   an  order    was   entered  25.  Rochester  R.  Co.  v.  New  York 

restraining   certain    officers   and  R.  Co.    48  Hun,  190. 

members,  including    appellant,  from  26.  Forsythe  v.   Winans,  44  Ohio 

disposing   of    the    property    of    their  St.  277    7  N.  E.  13. 

corporation,  and  was  served  on  the  27.  Kempson   v.    Kempson,   61   N. 

president   in   the    presence   of   appel-  J.  Eq.  303,  48  Atl.  244. 
lant,  who  had  notice  of  the  order  and 

390 


Violations  and  Punishment  of.  §  249 

sending  notice  by  telegram  to  a  distant  place  of  the  issuing  of  an 
injunction,  instead  of  telegraphing  directly  to  the  parties  enjoined, 
it  is  better  to  telegraph  to  a  responsible  attorney  or  other  agent, 
asking  him  to  give  notice  to  the  parties  enjoined.28 

§  249.  Excuse  of  violation. — A  failure  to  obey  an  injunction 
may  be  excused  by  ill  health  and  poverty  and  the  severity  of  the 
weather,  where  a  disposition  to  obey  has  been  manifested :29  but 
the  excuses  must  show  the  defendant's  inability  to  do  the  act 
required  or  the  court  will  not  accept  them.30  But  though  there 
may  be  an  irregularity  in  connection  with  the  proceedings  leading 
to  the  issuance  of  an  injunction  this  is  no  excuse  for  its  violation.31 
And  the  failure  of  the  person  enjoined  through  carelessness  to 
inform  his  agent  of  the  injunction  will  not  excuse  him  if  his  agent 
violates  it.32  And  where  the  owner  of  a  water  power  was  re- 
strained by  injunction  from  so  using  the  water  in  the  stream  as  to 
throw  back  water  upon  the  wheels  of  the  plaintiff's  mill  standing 
in  the  same  stream,  it  was  held  that  he  could  not  escape  liability 
for  violation  of  the  injunction  by  leasing  the  premises  to  other 
parties  and  informing  them  that  the  injunction  was  in  force  at 
the  time,  the  lessees  taking  possession  under  the  lease  and  there- 
after violating  the  injunction.33  Nor  is  it  a  defense  to  a  proceed- 
ing for  violation  of  an  injunction  that  the  plaintiff  had  no  cause 
of  action  and  could  not  recover  in  any  event,34  as  the  merits  of  the 

28.  Ex  parte  Langley,  L.  R.  13  Ch.  A'eio  York. — People  v.  Van  Buren, 
D.  110.  136   N.  Y.  252,  32  N.  E.  775;    New 

29.  Scott  v.  Layng,  59  Mich.  43,  York  v.  New  York  &  S.  I.  F.  Co...  64 
26  N.  W.  220,  791.  N.   Y.     622;     Sullivan    v.    Judali.   4 

30.  Pennsylvania  R.  Co.  v.  Thomp-  Paige,  444;  Daly  v.  Amberg,  59  Hun, 
eon,  49  N.  J.  Eq.  318,  24  Atl.  544;  624,  13  N.  Y.  Supp.  379. 
Quacker.bush  v.  Van  Riper,  2  Gr.  Eq.  Vermont. — Howe  v.  Willard,  40  Vt. 
350;  McClure  v.  Gulick,  2  Harr.  340;  654. 

State  v.  Gulick,  2  Harr.  435.  Compare  Smith  v.  People,  2  Colo. 

31.  United  States.— United  States       App.  99    29  Pac.  924. 

v.  Debs,  64  Fed.  724.  32.  Mundy     v.     Lidgerwood    M'f'g 

California. — In  re   Fil  Ki,  79  Cal.  Co.,   34    Fed.   541.      See   Poertner   v. 

684    21  Pac.  974.  Russell.  33   Wis.    193. 

Ioica. — First  Congregational  Church  33.  Batterman   v.    Finn,    34    How. 

v.  Muscatine,  2  Iowa,  69.  Prac.   (N.  Y.)    108. 

Kansas. — State  v.  Prcice,  51  Kan.  34.  Sheffield    v.    Cooper,    21    App. 

241.  32  Pac.  924.  Div.    (N.  Y.)    518. 

397 


§  250  Violations  and  Punishment  of. 

case  in  connection  with  the  issuance  of  the  injunction  will  not  be 
considered  by  the  court  in  determining  the  question  of  a  con 
tempt.35  Again,  it  is  no  defense  for  a  violation  of  an  injunction 
prohibiting  the  occupation  of  certain  land,  that  the  party  violating 
it  was  authorized  by  a  vote  of  the  town  to  occupy  the  land.38  And 
it  is  no  defense  that  the  offender  did  not  intend,  in  what  he  did,  to 
contemn  the  authority  of  the  court.37 

§  250.  Same  subject  continued ;  effect  of  dissolution. — The 
fact  that  an  injunction  has  been  dissolved  is  held  to  furnish  no 
protection  to  a  person  for  violating  it  while  it  remained  in  force.38 
But  in  a  later  case  in  New  York  in  which  an  order  granting  a 
temporary  injunction  restraining  the  constructing  by  an  elevated 
railroad  of  a  stairway  on  a  street  was  reversed  the  court  declared 
that,  as  such  order  should  be  reversed,  an  order  to  punish  for  con- 
tempt in  violating  the  injunction  fell  with  it.39  Again,  it  is  no 
defense  that  an  order  had  been  made  vacating  the  injunction  before 
the  alleged  violation,  where  the  court  making  the  order  had  no 
jurisdiction,  the  injunction  having  been  granted  by  another  court.40 
The  court  may,  however,  take  into  consideration  the  fact  the  in- 
junction was  erroneously  granted  and  without  sufficient  equity  to 
sustain  it  in  determining  the  extent  of  the  punishment  to  be  im- 
posed for  a  violation  thereof."    Where  an  injunction  forbids  the 

35.  Drury  v.  Ewing,  Fed.  Cas.  No.  6upp.  470;  aff'd  117  N.  Y.  661,  22  N. 
4095,   1   Bond,  540;    First   Congrega-       E.  1134. 

tional  Church  v.  Muscatine,  2  Iowa,  A    special    surrogate    has    no 

69;  People  v.  Dwyre,  90  N.  Y.  402;  power,  on  an  ex  parte  application, 

People  v.  Spaulding,  2  Paige,  326.  to  vacate  an  injunction  granted  by  a 

36.  Fowler  v.  Beckman,  66  N.  H.  county  judge  in  an  action  brought 
424,  30  Atl.  1117.  in  the  Supreme  Court;  and  where  the 

37.  Thompson  v.  Pennsylvania  R.  person  enjoined  procures  the  special 
Co.,  48  N.  J.  Eq.  105,  25  Atl.  182.  surrogate    to   make   such   order,    and 

38.  Smith  v.  Reno,  6  How.  Prac.  then  does  what  was  forbidden  by  the 
(N.  Y.)   124.  injunction,  he  is  guilty  of  contempt. 

39.  Krone  v.  Kings  County  Elev.  People  ex  rel.  v.  Van  Buren  (Sup.), 
R.  Co.,  50  Hun   (N.  Y.),  431.  18  N.  Y.  Supp.  734,  aff'd  136  N.  Y. 

40.  Koehler  v.   Farmers'   &  Drov-  252.  32  N.  E.  775. 

ers'  Nat.  Bank  of  Somers,  6  N.  Y.  41.  Sullivan  v.  Judah,  4  Paige  Ch. 

398 


Violations  and  Punishment  of  §  250a 

doing  of  certain  acts,  "  except  in  extraordinary  emergencies  it 
becomes  unavoidable,"  in  contempt  proceedings  for  the  violation 
of  the  injunction,  the  burden  is  on  the  respondent  to  show  that  the 
violations  complained  of  were  committed  under  pressure  of  the 
emergencies  contemplated  by  the  terms  of  the  injunction.42  Again, 
the  violation  of  an  injunction  will  not  be  excused  by  the  fact  that 
the  injunction  as  issued  is  broader  in  its  scope  than  the  prayer  of 
the  complainant's  bill.43 

§  250a.  Same  subject;  effect  of  modification  of  injunction. — 
Where  an  injunction  as  granted  is  subsequently  modified  by  the 
court  so  as  to  permit  the  doing  of  certain  acts  prohibited  in  the 
original  injunction,  the  latter  injunction  is  dissolved  and  plaintiff 
can  not  be  punished  for  violation  thereof.44  So  where  defendants 
were  restrained  by  injunction  from  working  or  mining  upon  cer- 
tain grouud  in  controversy  until  the  final  determination  of  the 
action  and  subsequently  the  court  granted  an  order  providing  that 
upon  the  giviug  of  a  certain  bond  the  defendants  "  should  be 
allowed  and  permitted  without  interference  by  the  plaintiffs,  their 
agents,  successors,  or  employees  to  mine  and  operate  "  such  ground, 
which  bond  was  given,  it  was  decided  that  the  defendants  were 
not  guilty  of  contempt  of  court  in  entering  upon  the  property  and 
ousting  the  plaintiffs  therefrom,  it  being  declared  that  the  modify- 
ing order  had  the  effect  of  dissolving  the  injunction.45  And  in  a 
case  in  New  York  it  is  decided  that  where  an  injunction  improperly 
restrains  certain  acts  of  the  defendant,  and  during  its  continuance 
these  acts  are  performed  by  the  defendant  in  technical  violation 
of  the  injunction  but  subsequently  the  injunction  is  modified  so  as 
to  dispense  with  the  clause  improperly  restraining  such  acts  an 

(N.  Y.)  444;  State  v.  Circuit  Court  New  York  v.  New  York  &  S.  I.  F. 

for  Green  Lake  Co.,  98  Wis.  143,  73  Co.,  64  N.  Y.  622.    Compare  Freeman 

N.  W.  788.  v.  Deming,  4  Edw.  Ch.   (N.  Y.)   598. 

42.  Thompson  v.  Pennsylvania  R.  44.  United  States  v.  Price,  1 
Co..  38  N.  J.  Eq.  105,  21  Atl.  182.  Alaska,  204;  Fremont  v.  Merced  Min. 

43.  Sickels   v.    Borden,    Fed.    Cas.  Co..  9  Cal.  18. 

No.  12833,  4  Blatch.  C.  C.  14;  Loven  45.  United     States     v.     Price,     1 

v.  People,  158  111.  159,  42  N.  E.  82;        Alaska,  204. 
Richards  v.  West,  3  N.  J.  Eq.  456; 

399 


§  251  Violations  and  Punishment  of. 

attachment  for  such  violation  of  the  injunction,  applied  for  and 
issued  after  the  modification  of  the  injunction,  can  not  be  sus- 
tained.'16 This  decision  was  placed  upon  the  general  principle  that 
an  injunction,  which  is  but  an  order  of  the  court,  can  have  no  more 
force  or  extended  operation  after  it  is  set  aside  or  modified,  than 
a  statute  repealed  or  modified,  in  regard  to  acts  previously  done. 
But  in  a  case  in  Iowa  it  is  decided  that  the  violation  of  a.  restrain- 
ing order  can  not  be  justified  in  a  contempt  proceeding  by  showing 
that  at  the  time  the  order  was  violated  a  motion  to  modify  the  same 
was  pending.47 

§  251.  What  constitutes  violation. — An  injunction  must  be 
obeyed  in  its  spirit  as  well  as  its  letter.  The  party  enjoined  must 
not  do  the  forbidden  thing  nor  permit  it  to  be  done,  nor  effect  it 
by  trick  or  evasion.  In  deciding  whether  there  has  been  a  breach 
or  not  the  objects  for  which  the  relief  was  granted  must  be  con- 
sidered.48 A  party  restrained  by  injunction  from  doing  a  particu- 
lar act  will  be  considered  as  having  violated  an  injunction  where  he 
stands  by  and  sees  it  violated  by  a  partner  at  their  common  ex- 
pense or  for  their  common  benefit.49  Thus  an  injunction  restrain- 
ing one  from  keeping  a  liquor  nuisance  on  his  premises  is  violated 
if  one  is  kept  there  with  his  knowledge  and  assent.50  And  though 
the  damages  resulting  from  a  violation  of  an  injunction  are  trivial 
a  person  violating  it  may  nevertheless  be  guilty  of  contempt.  Thus 
it  was  so  held  where  a  person  violated  an  injunction  pendente  lite 

46.  Peck  v.  Yorks,  32  How.  Prac.  trict  in  which  the  action  is  brought, 
(N.   Y.)    408.  and,  if  one  so  enjoined  shall  again  be 

47.  Young  v.  Rothrock,  121  Iowa,  concerned  in  the  sale  of  liquor  in  the 
588.   96   N.   W.    1105.  district,   he   shall    be   guilty   of   con- 

48.  Loder  v.  Arnold,  15.  Jurist,  tempt.  Held,  that  one  might  be  ad- 
117.  judged  so  guilty  though  the  action  in 

49.  Neale  v.  Osborne,  15  How.  which  the  injunction  was  granted  was 
Prac.   (N.  Y.)   81.  begun  before  the  act  took  effect    and 

50.  England  v.  Johnson,  66  Iowa,  though  the  decree  for  an  injunction 
751,  53  N.  W.  268.  Acts  22d  Gen.  did  not  in  terms  provide  that  it 
Assem.,  ch.  73,  §  4,  provides  that  an  should  operate  throughout  the  dis- 
injunction  to  restrain  a  liquor  trict.  McGlasson  v.  Johnson,  86 
nuisance    shall   bind    the    person    en-  Iowa,  477,  53  N.  W.  267. 

joined    throughout    the    judicial    dis- 

400 


Violations  and  Punishment  of. 


§251 


restraining  him  from  serving  milk  or  cream  to  any  customers  of 
the  plaintiff.31  An  injunction  against  further  proceedings  in  the 
collection  of  an  execution  enjoins  the  enforcement  of  the  judg- 
ment itself.52  And  an  injunction  against  taking  possession  under  a 
verdict  obtained  in  ejectment  has  been  held  to  be  violated  by  pro- 
curing an  attachment  for  non-payment  of  the  costs  taxed  in  the 
ejectment  suit.53  And  an  injunction  against  an  action  at  law  is 
violated  by  the  delivery  of  a  declaration;54  and  by  obtaining  a 
change  of  venue  ;55  and  by  service  of  notice  of  trial  ;56  but  not  by 
issuing  a  precept  for  costs  in  such  action  if  the  injunction  did  not 
prohibit  the  collection  of  costs.57  Again,  the  dismissal  of  an  en- 
joined action  and  the  subsequent  bringing  of  another  for  the  same 
demand  is  a  violation.58  And  where  the  construction  of  a  street 
railroad  under  a  certain  franchise  is  prohibited  by  an  injunction 
the  one  enjoined  cannot  avoid  the  effect  of  the  injunction  by  a 
transfer  of  the  franchise  to  another  after  notice  thereof  but  before 
the  writ  is  served  upon  him.59  And  an  injunction  against  obstruct- 
ing the  passage  of  boats  along  a  canal  has  been  held  to  be  violated 


51.  Mutual  Milk  &  Cream  Co.  v. 
Heldt,  123  App.  Div.  (N.  Y.)  509, 
108  N.  Y.  Supp.  565. 

52.  Campbell  v.  Tarbell,  55  Vt. 
455,  per  Royce,  C.  J.:  "The  pur- 
pose of  the  bill  upon  which  the  in- 
junction was  granted  was  to  avoid 
the  judgment  upon  which  the  execu- 
tion was  issued;  and  unless  the  in- 
junction is  construed  as  enjoining  the 
enforcement  of  that  judgment  during 
its  pendency  the  obtaining  of  it  was 
an  idle  ceremony."  See,  also.  Bullen 
v.  Ovey,  16  Ves.  141;  Woodley  v. 
Boddington.  9  Simons,  214.  In  this 
ease  the  writ  of  final  execution  was 
in  the  sheriff's  hands  and  the  first 
proclamation  made  before  the  injunc- 
tion issued  and  the  vice  chancellor 
said :  "  The  sheriff  who  receives  the 
writ  is  to  a  certain  extent  the  agent 
or  servant  of  the  plaintiff  at  law; 
for    any     intimation     given     by    the 


plaintiff  to  the  sheriff  not  to  go  on 
would  be  an  indemnity  to  the  sher- 
iff, and  he  would  be  bound  not  to 
proceed.  Here  no  step  was  taken. 
.  .  .  A  communication  took  place 
between  Boddington's-  solicitor  and 
the  sheriff,  and  the  solicitor  said  he 
would  give  no  order.  ...  I  can- 
not but  think  that  the  conduct  of 
the  solicitor  was  not  proper,  and  that 
this   is   a   case  of  contempt." 

53.  Partington  v.  Booth,  3  Meriv. 
148. 

54.  Mills  v.  Cobby,   1   Meriv.  3. 

55.  Pariente   v.    Bensusan,    12    Si- 
mons, 522. 

56.  Clark   v.    Wood,    6   N.    J.    Eq. 
458. 

57.  German   Savings  Bank  v.  Ha- 
bel,  80  N.  Y.  273. 

58.  In  re  Schwarz,  14  Fed.  787. 

59.  San   Antonio  v.   Rische    (Tex. 
Civ.  App.),  38  S.  W.  388. 


401 


26 


§  252  Violations  and  Punishment  of. 

by  the  bringing  of  fifteen  suits  on  account  of  such  passage  of 
boats.60  But  it  is  not  a  violation  of  an  injunction  for  defendant, 
a  voluntary  association,  to  employ  counsel  to  advise  and  defend  it 
in  the  injunction  proceedings.61  And  where  at  a  lawful  meeting  of 
directors  a  new  stock  book  was  adopted,  and  an  injunction  was 
obtained  against  the  inspectors  using  it  at  an  election  of  directors, 
and  the  corporation  law  provided  that  if  the  right  to  vote  at  such 
elections  was  challenged  the  inspectors  should  use  the  company 
books,  "  if  they  can  be  had,"  it  was  held  that  as  the  election  itself 
was  not  enjoined  and  the  new  stock  book  was  not  used  there  wa3 
no  violation  of  the  injunction  in  proceeding  to  an  election  and 
using  no  stock  book  at  all,  as  there  was  no  order  compelling  the 
use  of  the  old  and  the  new  one  was,  by  reason  of  the  injunction,  as 
if  it  could  not  be  had.61a  And  when  an  injunction  restraining  the 
operation  of  a  plant  does  not  prohibit  such  operation  entirely  nor 
prohibit  any  express  acts'  it  is  decided  that  a  defendant  who  has 
made  improvements  in  the  plant  so  as  to  obviate  most  of  the  defects 
complained  of  should  not  be  adjudged  guilty  of  contempt  in  con- 
tinuing to  operate  the  plant  although  the  improvements  are  not 
beyond  criticism  as  under  such  circumstances  continuing  the  busi- 
ness under  the  improved  conditions  is  not  a  wilful  disobedience 
of  the  court's  command.62  One  who  would  charge  a  contempt 
should  aver  directly  that  the  particular  acts  constituting  contempt 
were  done  by  the  party  charged  therewith.63 

§252.  Same  subject;  injunction  to  protect  right  of  way. 

60.  Grand   Junction   Canal   Co.  v.  61a.  Cassidy  v.  Manning,   138  N. 
Dimes.  17  Sim.  38.    A  defendant  who       Y.  557,  34  N.  E.  388. 

interferes     with     the     possession     of  62.  Saal    v.    South   Brooklyn   Ry. 

plaintiff's  tenant  by  driving  his  cattle  Co.,    122    App.    Div.     (N.    Y.)     364, 

from  the  land,  and  offering  to  lease  106  N.  Y.  Supp.  996. 
to  another,  when  a  decree  prohibits  63.  Boston  &  Montana  C.  C.  &  S. 

him  or  his  attorneys   from  entering  M.    Co.  v.   Montana  Ore  P.   Co.,   24 

upon   the    land,    or    interfering  with  Mont.    117,   60   Pac.   807,  wherein  it 

plaintiffs  or  their  tenants  in  the  pos-  is  said:      "Argumentative  affidavits, 

session,  control,  or  ownership  thereof,  in   which    the    affiant    endeavors   to 

is  guilty  of  contempt  of  court.     Ex  reason  out  a  charge  of  contempt  by 

parte  Vance,  88  Cal.  281,  26  Pac.  118.  exclusion,   will   not  serve  as   founda- 

61.  Beneville  v.  Whalen,  2  N.  Y.  tion  for  an  inquiry  whicn  involves  the 
Supp.  20.  liberty  of  persons." 

402 


Violations  and  Punishment  of. 


§253 


An  injunction  to  prevent  an  interference  with  a  mere  right  of  way 
is  not  to  be  so  construed  as  to  be  injurious  or  oppressive  to  the 
owner  of  the  fee  simple,  and  such  owner  is  not  chargeable  with  a 
violation  of  the  injunction  so  long  as  he  puts  the  soil  to  its  legiti- 
mate uses  and  does  not  actually  impair  the  reasonable  exercise  of 
the  right  of  way.64 

§253.  Same  subject;  changed  situation. — An  injunction 
against  the  collection  of  a  judgment  is  not  violated  by  the  taking 
of  such  proceedings  as  are  necessary  to  keep  the  judgment  alive^ 
as  for  instance  the  entry  of  an  order  of  revivor ;  for  such  a  proceed- 
ing is  not  an  attempt  to  collect  the  judgment.65     An  order  of  in- 


64.  Bosley  v.  Susquehanna  Canal, 
3  Bland.  Ch.  (Md.)  63,  per  Bland, 
Ch..  "  How  far  these  several  rights 
may  be  deemed  reconcilable  with  each 
other,  it  will  be  time  enough  to  de- 
termine at  the  final  hearing.  Chi- 
chester v.  Lethbridge,  Willis'  Rep.  72. 
.  .  .  I  deem  it  sufficient  to  ob- 
serve that  where  there  are  as  in  this 
instance  several  distinct,  but  inti- 
mately associated  rights,  such  as  a 
right  of  soil  alleged  to  be  subject  to 
several  kinds  of  right  of  way,  which 
from  the  nature  of  things,  must  in 
some  modes  of  exercising  them  be 
brought  into  apparent  collision  with 
each  other;  Ball  v.  Herbert,  3  T.  R. 
253;  and  an  injunction  has  been 
granted  for  the  preservation  of  one 
of  them,  the  court  will  not  consider 
any  act  to  be  a  violation  of  such  in- 
junction, that  is  a  fair  exercise  of 
another  of  the  associated  rights,  and 
which  leaves  the  right,  under  the  pro- 
tection of  the  injunction,  as  large  a 
scope  and  as  free  a  range  as  it  might 
have  had  when  the  injunction  was 
served  and  before  the  act  complained 
of  was  done.  The  validity  and  ex- 
tent of  the  right,  which  by  the  in- 
junction has  been  temporarily  taken 


under  the  special  care  of  the  court, 
and  of  the  other  rights  with  which  it 
stands  connected,  are  matters  which 
can  only  be  determined  with  propri- 
ety at  the  final  hearing;  until  then, 
or  so  long  as  the  injunction  is  con- 
tinued they  must  be  kept,  as  far  as 
practicable,  within  their  respective 
modes  and'  lines  of  use,  so  as  not  to 
be  allowed,  in  any  manner,  to  thwart 
or  obstruct  that  claimed  by  the  plain- 
tiff. In  this  case  it  could  not  be  said 
that  the  cuttings  complained  of  were 
not  legitimate  exercises  of  the  rights 
of  this  body  politic  as  holders  of  the 
fee  simple  in  the  land  and  as  owners 
of  the  profits  of  this  highway  or 
canal,  which  they  are  bound  to  repair 
and  keep  in  a  proper  state  for  navi- 
gation, unless  it  were  shown  that  the 
plaintiff's  right  of  way  in  that  con- 
dition in  which  it  was  found  by  the 
injunction  had  been  thereby  in  some 
form  or  other  substantially  impaired. 
And  that,  I  am  of  opinion,  has 
neither  been  admitted  Dy  the  answers 
to  the  petition  on  which  the  attach- 
ments were  awarded,  nor  shown  by  the 
affidavits  which  have  been  introduced 
and  read  by  consent." 

65.  The    State    recovered   a    judg- 


403 


§  254 


Violations  and  Punishment  of. 


junction  prohibiting  any  disturbance  of  the  status  of  property 
pending  litigation  concerning  it,  does  not  prevent  any  party  having 
an  interest  in  it  from  doing  what  is  necessary  to  preserve  it.66 
So  when  subsequent  courts  have  so  changed  the  situation  of  the 
property  for  the  maintenance  of  the  status  of  which  an  injunction 
has  been  granted  as  to  render  a  literal  compliance  with  it  imprac- 
ticable, a  reasonable  conformity  with  the  spirit  of  it  is  all  that  can 
be  insisted  on.67 

§254.  Same  subject;  illustrations. — A  mining  company  was 
proceeded  against  for  a  contempt  in  violating  an  injunction  against 
discharging  debris  to  the  injury  of  lands  below.  The  company 
contended  that  whereas  before  it  conducted  its  operations  by 
hydraulic  mining  it  now  conducted  them  by  drift  mining,  which 
was  not  within  the  terms  of  the  injunction.  It  was  held,  that  as 
the  injury  resulting  was  only  less  in  degree,  and  as  the  acts  done 
were  clearly  within  the  terms  of  the  decree,  a  fine  of  $1,500  should 


ment  on  a  forfeited  recognizance  in 
H.   County.     Subsequently  an  execu- 
tion was  issued  to  the  sheriff  of  R. 
county.      The     judgment    debtor    ob- 
tanied  an  injunction  in  the  District 
Court  of  R.  county  against  the  sher- 
iff,   perpetually  enjoining   him    from 
levying   the   execution,   and   also  en- 
joining   the     sheriff     and     board,  of 
county    commissioners   of   H.    county 
from  attempting  to  collect  the  judg- 
ment by  virtue  of  any  process  issued 
thereon.     The    sheriff    and   board   of 
commissioners   took   the   case  to   the 
Supreme  Court,  and.    while    it    was 
pending   there,   the   judgment   debtor 
died,  but  the  cases  in  R.  county  and 
the  Supreme  Court  were  revived,  with 
consent  of  all  the  parties,  in  the  name 
of   his    personal     representative    and 
sole  heir.    Within  the  year  prescribed 
by  the  statute  the  District  Court  of 
H.   county,   upon   the   application   of 
the  State,  entered  an  order  of  revivor 
on  the  judgment.     Held,  that  this  or- 


der was  not  error,  being  necessary  to 
keep  the  judgment  from  becoming  dor- 
mant, and  not  being  an  attempt  to 
collect  the  same,  or  a  violation  of  the 
injunction.  Raff  v.  State,  48  Kan. 
44,  28  Pac.  986.  See,  also,  Tibbetts 
v.  Deck,  41  Kan.  492,  21  Pac.  586; 
Myers  v.  Kothman.  29  Kan.  19; 
Green  v.  McMurtry,  20  Kan.  189. 

66.  Behrens  v.  McKenzie,  23  Iowa, 
333.  In  a  suit  concerning  the  cus- 
tody and  possession  of  a  piano,  "  de- 
fendant and  all  other  persons  "  were 
enjoined  from  moving  it  from  defend- 
ant's house,  where  it  was.  Defendant 
let  his  house,  and  left  the  State,  and 
plaintiff  removed  the  piano  to  his 
own  house  for  safe-keeping.  Held, 
that  plaintiff  would  not  be  deemed  in 
contempt.  Mowrer  v.  State,  107  Ind. 
539,  8  N.  E.  561.  See  Silver  Peak 
Mines  v.  Hanchett,  93  Fed.  76. 

67.  Robertson   v.    Bingley,    1    Mc- 
Cord,  Ch.  333. 


404 


Violations  and  Punishment  of.  §  254 

be  imposed  as  a  punishment  for  the  contempt.68  A  county  collector 
was  enjoined  from  paying,  and  a  county  clerk  from  receiving,  any 
salary  claimed  under  an  act  alleged  to  be  unconstitutional.  There- 
upon the  board  of  freeholders  passed  a  resolution  that  the  clerk 
should  be  paid  a  sum  the  precise  equivalent  of  his  claim  under  the 
act.  It  was  held,  an  evasion,  and  therefore  a  violation  of  the  in- 
junction.69 After  service  of  an  order  enjoining  defendant  from 
disposing  of  any  of  her  property  not  exempt  from  execution,  de- 
fendant procured  a  third  person  to  take  a  mortgage  on  some  of  the 
property  in  place  of  an  existing  mortgage.  The  new  mortgage  was 
for  a  less  amount  than  the  former  mortgage.  It  was  held  that 
defendant  was  not  guilty  of  a  contempt  in  disobeying  the  injunc- 
tion, since  her  interest  in  the  mortgaged  property  was  not  lessened.70 
A  judgment  debtor,  before  service  on  him  of  an  injunction  order 
in  supplementary  proceedings  forbidding  any  transfer  of  his 
property,  assigned  all  of  his  interest  in  an  insurance  policy  on  the 
life  of  a  third  person,  deceased,  to  his  wife.  After  service  of  such 
order  he  collected  the  insurance  money,  and  paid  the  same  over  to 
his  wife.  It  was  held  no  violation  of  the  injunction  order,  the  title 
to  the  money  not  being  in  the  debtor.71  An  injunction  prohibiting 
defendant,  in  an  action  to  enforce  a  judgment,  from  maintaining 
that  the  same  "  was  not  duly  given,  made,  or  entered  by  a  court 
having  competent  jurisdiction  thereof,  is  not  valid,  and  does  not 
still  stand  of  record  in  said  court,  and  is  not  in  full  force  against 
said  defendant,"  is  not  violated  by  a  general  denial  of  an  allegation 
that  such  judgment  was  recovered  in  a  named  court,  the  effect  of 
the  denial  being  merely  to  compel  plaintiff  to  produce  legal  evi- 
dence of  the  judgment;  but  it  is  violated  by  a  general  denial  of 
allegations  that  the  judgment,  which  was  against  a  non-resident, 
was  duly  entered,  and  that  it  still  stood  of  record  in  the  District 
Court.72 


68.  Re    North    Bloomfield    Gravel  70.  Duffus  v.  Cole,  15  N.  Y.  Supp. 
Mining  Co.,  27   Fed.  795.     See,  also,  370. 

Cianciminos,  etc.,  Co.  v.  Ciancimino,  71.  Rhodes  v.  Linderman,  17  N.  Y. 

17  N.  Y.  Supp.  125.  Supp.  628. 

69.  Gibbs  v.  Morgan,  39  N.  J.  Eq.  72.  Wakelee  v.  Davis,  50  Fed.  522. 
79. 

405 


§§  255,  256       Violations  and  Punishment  of. 

§  254a.  Where  injunction  conditional. — Where  it  is  ordered 
that  an  injunction  shall  issue  upon  the  filing  of  the  bill  such  order 
is  conditional  and  there  is  no  injunction  and  can  be  no  contempt 
until  the  bill  is  filed.73  So  where  an  injunction  has  been  granted 
but  is  not  to  go  into  effect  until  the  bond  has  been  executed,  acta 
done  between  the  time  of  the  granting  of  the  injunction  and  the 
execution  of  the  bond,  do  not  constitute  a  breach  of  the  injunction, 
placing  the  defendant  in  contempt  of  court,  although  such  acts 
would  be  violative  of  the  writ  if  it  had  become  fully  operative.74 

§  255.  Violation  of  patent  injunctions. — Where  an  injunction 
is  issued  against  selling  certain  articles  in  infringement  upon 
plaintiff's  patent,  it  is  violated  by  the  selling  of  the  articles  beyond 
the  territorial  jurisdiction  of  the  court,  whether  they  are  sent 
within  its  jurisdiction  or  not.75  It  is  a  violation  of  an  injunction 
to  use  a  prohibited  trade-mark  and  name  for  goods,  though  they 
are  made,  sold,  and  shipped  at  defendant's  place  of  business  in 
another  State,  of  which  both  plaintiff  and  defendant  are  resident 
corporations,  and  to  which  defendant,  who  had  been  doing  business 
in  the  State  wherein  the  injunction  is  pending,  has  removed  since 
it  was  granted.76  Where  a  patentee  has  enjoined  another  from 
making  and  selling  his  patented  preparation,  he  has  the  right  to 
send  his  agent  to  the  party  enjoined  to  procure  the  preparation 
from  him  in  order  to  ascertain  if  the  injunction  is  being  violated.77 
Carelessness  of  one  against  whom  an  injunction  has  been  obtained 
restraining  him  from  using  a  patented  device,  in  omitting  to  notify 
his  agent  of  such  injunction,  will  render  him  liable  for  contempt, 
for  sales  of  the  patented  articles  by  such  agent  after  the  injunction 
has  been  obtained.78 

§  256.  Violation  by  parties;  generally. — One  against  whom  an 
injunction  has  been  issued  should  not  only  abstain  from  personally 

7.3.  Winslow  v.  Nayson,  113  Mass.  75.  Macaulay  v.  White,  etc.,  Co.,  9 

411.  Fed.  698. 

74.  Ex  parte  Miller,  129  Ala.  130,  76.  Prince  M'f'g    Co.    v.    Prince's 

30  So.  611.  87  Am.  St.  Rep.  49.  Metallic  Paint  Co..  2  "N.  Y.  Supp.  682. 

State      v.      Irwin.      30      W.      Va.  77.  Knowles  v.  PecK,  42  Conn.  386. 

404,  4  S.  E.  413.  78.  Mundy     v.     Lidgerwood    M'f'g 

Co.,  34  Fed.  541. 

406 


Violations  and  Punishment  of.  §  256a 

violating  it  but  should  also  -endeavor  to  prevent  his  agents  or  em- 
ployees from  violating  it.79  A  party  bound  to  obey  an  injunction 
may  be  guilty  of  violation  thereof  as  well  by  aiding,  abetting  and 
countenancing  others  in  violating  it  as  by  doing  it  directly.80  If 
it  appears  that  a  party  has  stood  by  and  allowed  a  process  over 
which  he  had  control  to  be  executed  after  he  has  himself  been 
served  with  an  injunction  restraining  it,  he  is  guilty  of  disobedi- 
ence to  the  order,  and  may  be  punished  as  for  a  contempt.81  So 
where  a  plaintiff  in  attachment  was  enjoined  from  selling  attached 
property  and  the  levying  officer  in  his  presence  sold  a  part  of  the 
property,  he  standing  silently  by,  it  was  held  that  he  violated  the 
injunction.82  This  rule  was  also  applied  under  the  following  cir- 
cumstances :  A  defendant  being  restrained  by  injunction  from 
disposing  of  certain  property,  left  it  in  charge  of  the  clerks  at  his 
store,  mixed  indiscriminately  with  other  property,  and  having  in- 
formed the  clerks  of  the  existence  of  the  injunction,  left  the  store 
without  any  effort  to  separate  and  identify  the  property,  and  did 
not  interfere  personally  in  the  management  of  the  business  for 
some  time  afterwards.  During  his  absence  his  clerks  sold  some  of 
the  property  covered  by  the  injunction  and  it  was  held  that  the 
defendant  had  by  connivance  violated  the  injunction  and  was  in 
contempt.83 

§  256a.  Violation  by  complainant. — While  a  complainant  by 
doing  the  acts  which  an  injunction  prohibits  the  defendant  from 
doing  may  not  subject  himself  to  the  summary  proceeding  for 
contempt  yet  he  should  not  bo  permitted  to  do  such  acts  with 
impunity.  So  it  is  said  to  be  a  gross  abuse  of  the  process  of  the 
court  for  him  after  having  by  means  of  the  injunction  tied  the 
hands  of  his  adversary  to  disregard  his  own  injunction.  So  this 
principle  was  applied  where  an  injunction  was  granted  restraining 
defendant  from  mining  or  disposing  of  any  ore  pending  the  suit 

79.  Poertner  v.  Russel,  33  Wis.  v.  Conover,  5  Abb.  Prac.  (N.  Y.) 
193.  244. 

80.  Mayor   of   New  York  v.    New  82.  Martin  v.  Blood,  21  Ga.  127. 
York  &  S.  I.  F.  Co.,  64  N.  Y.  622.  83.  Field   v.    Chapman,     13     Abb. 

81.  Mayor  of   City  of  New  York  Prac.   (N.  Y.)  321. 

407 


§  256b  Violations  and  Punishment  of. 

and  complainant  subsequently  ejected  defendant  and  took  posses- 
sion of  the  mine.  The  court  in  this  case  ordered  the  complainant 
to  restore  the  property  to  defendant  and  to  restrain  with  any  fur- 
ther interference  with  the  possession  thereof  during  the  pendency 
of  the  suit.84 

§  256b.  Violation  by  one  not  a  party. — The  weight  of  authority 
supports  the  rule  that  it  is  not  essential,  in  order  that  one  may  be 
adjudged  guilty  of  contempt  for  violation  of  an  injunction  that  he 
should  be  a  party  to  the  suit  in  which  it  was  issued  or  be  actually 
served  with  a  copy  of  it.  Actual  notice  only  is  necessary.85  So 
in  a  case  in  Oregon  it  is  said :  "  While  there  is  some  conflict  of 
authority  upon  the  question  of  the  liability  of  a  person  for  violat- 
ing the  process  of  a  court,  the  weight  and  better  reason  seem  to 
support  the  rule  that  a  stranger  to  an  injunction,  who  has  notice 
or  knowledge  of  its  terms,  is  bound  thereby,  and  may  be  punished 
for  contempt  for  violating  its  provisions."  86  And  it  is  also  said 
in  a  case  in  the  Circuit  Court  of  Appeals  that  any  person  who, 
having  notice  that  such  an  order  has  been  made  against  a  party 
to  the  suit,  aids  and  assists  that  party  in  its  violation  is  as  much 
amenable  to  proceedings  for  contempt  as  if  he  were  a  party  named 
in  the  record.87  And  where  a  decree  enjoins  the  defendants  "  their 
servants,  aides  and  abettors  "  one  who  knowingly  aids  and  abets 
in  the  violation  of  such  decree  is  liable  for  his  violation  of  the 
decree  though  he  is  not  a  party  to  the  bill  or  personally  named 
therein.88  But  in  a  case  in  Louisiana  it  is  held  that  one  not  a  party 
to  a  suit  in  which  an  injunction  has  issued,  and  to  whom  such 
injunction  is  not  directed  cannot  be  held  in  contempt  or  punished 

84.  Vanzandt  v.  Argentine  Min.  85,  49  Pac.  852.  Per  Moore,  J.,  eit- 
Co.,  48  Fed.  770.  ing  Rapalje  on   Contempt,    par.    47; 

85.  In  re  Lennon,  166  U.  S.  554.  Ewing  v.  Johnson,  34  How.  Prac.  (N. 
17  Sup.  Ct.  658,  41  L.  Ed.  1110;  Y.)  202;  Waffle  v.  Vanderheyden.  8 
Chisholm  v.  Caines,  121  Fed.  397;  Ex  Paige  (N.  Y.),  45;  United  States  v. 
p.    Lennon,    64    Fed.    320,    12    C.    C.  Debs.  64  Fed.  724. 

A.  134;  Titusville  Iron  Co.  v.  Quinn,  87.  Ex  parte  Lennon,  64  Fed.  320, 

13    Pa.    Dist.   Rep.   416;    York    Mfg.  12  C.  C.  A.  134.    Per  Severens,  J. 

Co.  v.  Oberdick,  11  Pa.  Dist.  R.  616.  88.  Fowler  v.  Beckman,  66  N.  H. 

86.  State  v.  Lavery,  31  Oreg.  77,  424,  30  Atl.  1117. 

408 


Violations  and  Punishment  of.  §  257 

for  a  violation  of  the  writ  although  the  act  prohibited  be  illegal 
in  itself.  And  it  was  also  held  in  this  case  that  a  party  punished 
by  imprisonment  under  such  circumstances  is  illegally  condemned 
and  has  a  right  of  action  against  those  at  whose  instance  and  for 
whose  benefit  the  order  of  imprisonment  was  made  and  obtained.89 
And  in  an  early  case  in  New  York  it  is  held  that  an  injunction 
order  can  only  go  against  a  party  to  the  action,  and  that  one  not  a 
party  can  not  be  held  in  contempt.90  Acts  done,  however,  by 
strangers  without  the  privity  or  consent  of  a  party  do  not  make  him 
guilty  of  contempt.91 

§  257.  Violation  by  agents  and  servants. — The  employees  of 
a  corporation  can  be  punished  for  violating  an  injunction  without 
being  made  parties  to  the  injunction  suit,  provided  they  receive 
notice  of  it.92  It  is  no  excuse  for  disobedience  of  an  injunction  by 
an  agent  of  defendant,  that  it  had  not  been  served  on  defendant 
himself,  where  it  was  intended  to  restrain  his  agents  and  servants 
as  well  as  himself,  and  another  agent  who  was  served  with  the 
same  order  by  leaving  with  him  a  copy  of  it  for  defendant,  but 
who  immediately  threw  it  away,  is  chargeable  with  knowledge  of 
its  import,  and  his  subsequent  violation  of  it  is  a  contempt ;  and 
the  fact  that  another  agent  on  whom  the  order  was  served  did  not 
understand  it,  though  it  mitigates  his  offense  in  violating  it,  does 
not  entirely  excuse  him,  as  it  was  his  duty  to  have  it  explained 
to  him.93  One  who  with  full  knowledge  that  an  injunction  has 
been  granted,  and  of  its  contents  and  service  on  a  co-defendant, 
violates  the  direction  thereof  while  acting  as  the  agent,  servant  or 
assistant  of  the  defendant  so  served,  is  guilty  of  a  contempt  of 
court.94     But  where   an   employee  of   a  company   exercises   the 

89    Barthe  v.  Larquie,  42  La.  Ann.  E.    1038.     See,    also,    Abell   v.   New 

131    7  So.  80.  York>  etc'  R-   Co'    18  W-   DiS-  554< 

90.  Watson     v.     Fuller,     9     How.  aff'd  100  N.  Y.  634;  Koehler  v.  Farm- 

Prac    (N   Y  )   425.  er8'  an<*  Drovers'  Nat.  Bank  of  Sora- 

91  Stock  v  Township  of  Jeffer-  ers,  6  N.  Y.  Supp.  470,  aff'd  117  N. 
son,  132  Mich.  96,  92  N.  W.  769.  Y.  661,  22  N.  E.  1134. 

92  Toledo  °tc  R.  Co.  v.  Penn-  94.  Aldinger  v.  Pugh,  57  Hun,  181, 
svlvania  Co.,  M  Fed.  746.  10  N.  Y.  S.  684,  aff'd  132  N.  Y.  403, 

93.  Daly    v.    Amberg,    13    N.    Y.       30  N.  E.  745. 
Supp.  379,  aff'd  126  N.  Y.  490,  27  N. 

409 


§  258  Violations  and  Punishment  of. 

authority  with  which  he  is  clothed  by  the  company,  in  good  faith, 
with  an  intention  and  purpose,  to  the  best  of  his  ability  to  enforce 
obedience  to  an  injunction,  he  will  not  be  personally  liable  for 
contempt.95 

§258.  Same  subject;  violation  by  attorneys. — An  injunction 
may  be  violated  by  aiding  and  abetting  others,  as  well  as  by 
violating  it  directly,  and  any  scheme,  however  skillfully  devised, 
to  thwart  its  orders,  will  be  treated  by  the  court  as  a  violation.96 
Thus  an  attorney  may  be  guilty  of  a  violation  in  advising  his 
clients  to  commit  one,  as  injunctions  ordinarily  restrain  not  only 
the  defendant  but  also  his  attorneys,  agents  and  servants.97  And 
attorneys  who  advises  the  violation  of  an  injunction  are  liable  for 
contempt  even  though  the  order  has  not  been  served  upon  them.98 
In  a  case  in  New  York  it  is  said  in  this  connection :  "  Attorneys 
who  deliberately  advise  a  client  to  resist  or  violate  an  order  of  the 
court  should  be  visited  with  more  severe  punishment  than  the 
client.  If  counsel  are  to  be  permitted  to  advise  their  clients  to 
do  acts  in  plain  violation  of  an  injunction  order  duly  issued,  it 
will  be  difficult  to  preserve  the  dignity  of  the  court  or  to  secure  the 
orderly  administration  of  justice."  "  An  attorney  advising  and 
acting  for  a  stranger  to  an  injunction  cannot  ordinarily  be  guilty 
of  violating  it;1  and  where  an  attorney  has  two  clients,  one  of 

95.  Pennsylvania  Railroad  Co.  v.  receiver;  and  that  restrained  'Hiler 
Thompson,  49  N.  J.  Eq.  318,  24  Atl.  and  his  servants,  agents  and  attor- 
544  neys.'     Did  Randall  violate  that  or- 

96.  People  v.  Pendleton,  64  N.  Y.  der?  I  cannot  perceive  upon  the  un- 
622,  624.  disputed  facts  that  he  did.     He  may 

97.  Ex  parte  Vance,  88  Cal.  281,  have  been  sharp  and  unscrupulous, 
26  Pac.  118.  See,  also,  Watson  v.  he  may  have  taken  advantage  of  the 
Citizens'  Savings  Bank,  5  S.  C.  159.  relators  and  their  attorney,  but  did 

98.  Stolts  v.  Tuska,  82  App.  Div.  he  violate  the  order?  That  is  the 
(N.  Y.)    81,  81  N.  Y.  Supp.  638.  sole  question.    In  procuring  this  fund 

99.  Stolts  v.  Tuska,  82  App.  Div.  from  the  chamberlain  he  did  not  act 
(N.  Y.)  81,  85,  81  N.  Y.  Supp.  638.  for  Hiler;  he  acted  for  the  trustee. 
Per  Laughlin,  J.  The   fund   did   not   belong   to    Hiler. 

1.  People  v.  Randall,  73  N.  Y.  416,  He  had  made  an  absolute  transfer  of 

422,    per   Earl,    J.:      "The   only    re-  it  to  Haight,  and  in  January.   1873, 

straining   order   remaining  was   that  he    had    no    interest   whatever   in    it. 

contained  in  the  order  appointing  the  The   fund   was  not  large  enough   to 

410 


Violations  and  Punishment  of. 


§250 


whom  is  enjoined  and  the  other  who  is  in  an  independent  position 
and  claiming  different  rights  is  not  enjoined,  the  attorney  cannot 
ordinarily  be  charged  with  a  violation  of  the  injunction  in  advis- 
ing and  acting  for  the  one  not  enjoined.2  But  an  attorney  may 
be  chargeable  with  a  violation  where  a  client  having  the  legal  title 
to  property  is  enjoined  from  transferring  it,  and  he  co-operates 
with  another  client  having  an  equitable  interest  in  the  same  prop- 
erty in  effecting  a  transfer  of  the  property.3 

§  259.  Violation  excused. — Where  a  person  has  been  enjoined 
for  non-compliance  with  statutory  requirements,  it  is  not  a  viola- 


pay  the  debts  which  the  trustee  was 
directed  to  pay  out  of  it.  That  as- 
signment may  have  been,  and  prob- 
ably was,  void  as  to  Hiler's  creditor's 
who  did  not  assent  to  it.  Goodrich 
v.  Downs,  6  Hill,  438.  They  could 
have  assailed  it  and  set  it  aside,  and 
reached  the  property,  but  it  was 
valid  as  between  the  parties  thereto 
and  as  to  all  creditors  who  assented 
to  it.  Hiler  could  not  dispute  its 
validity.  It  divested  him  of  the  prop- 
erty assigned  as  completely  as  if  it 
were  valid  against  the  whole  world. 
He  could  not  revoke  or  annul  the  as- 
signment or  do  any  ac  tto  impair  or 
affect  the  title  of  the  assignee.  This 
was  not,  therefore,  his  property;  and 
Randall  in  procuring  its  payment  to 
the  trustee,  did  not  act  as  Hiler's 
agent  or  attorney  or  interfere  with 
his  property.  There  was  no  restraint 
upon  the  chamberlain  or  upon  him 
as  attorney  and  agent  of  the  trustee. 
Hiler,  when  he  gave  the  order  on  the 
chamberlain,  did  not  interfere  with 
his  own  property,  but  simply  did  an 
act  not  absolutely  essential,  but 
which  aided  the  trustee  in  getting 
possession  of  property  which  belonged 
to  him.  It  may  be  that  the  transfer 
of  the  trust  from  Haight  to  Dusen- 
bury  was  invalid.     It  certainly  was 


invalid  unless  all  the  creditors  inter- 
ested in  it  assented  to  the  transfer. 
If  all  persons  interested  in  the  trust 
assented,  it  certainly  was  valid.  If 
they  were  all  satisfied,  no  one  else 
could  question  it.  If,  however,  the 
transfer  was  invalid,  the  title  re- 
mained in  Haight  and  was  still  out 
of  Hiler.  But  for  another  reason 
Randall  was  not  guilty  of  violating 
either  of  these  injunction  orders.  The 
one  in  terms  operated  only  upon  the 
chamberlain,  and  the  other  only  upon 
Hiler,  his  servants,  agents  and  at- 
torneys. Neither  of  these  orders  re- 
strained Dusenbury  or  his  attorney. 
Dusenbury  was  not  a  party  to  the  ac- 
tion or  proceeding  in  which  the  or- 
ders were  made.  He  did  not  acquire 
his  rights  pendente  lite.  They  were 
antecedent  to  the  supplementary  pro- 
ceedings. He  was  an  entire  stranger 
to  the  orders,  and  hence  was  in  no 
way  affected  by  or  bound  to  obey 
them,  and  Randall  as  his  attorney 
was  in  the  same  position.  1  Barb 
Ch.  Pr.,  634;  Batterman  v.  Finn,  32 
How.    Pr.    501." 

2.  Slater  v.  Merritt,  75  N.  Y.  268. 

3.  Wilcox  Silver-Plate  Co.  v. 
Schimmel,  59  Mich.  524,  26  N.  W. 
692.  See,  also  Wimpy  v.  Phinizy,  68 
Ga.  188. 


411 


§260 


Violations  and  Punishment  of. 


tion  of  the  injunction  to  do  the  act  enjoined  in  conformity  with 
such  requirements/  The  party  enjoined  may  repel  the  charge  of 
violation  by  showing  that  the  injury  complained  of  results  from 
other  causes.5 


§  260.  Obeying  injunction  so  far  as  clear;  changed  situation. 

— The  party  enjoined  must  obey  the  injunction  in  so  far  as  it  is 
plain  and  specific,  but  if  it  is  in  part  so  vague  and  indefinite  as 
to  admit  of  no  certain  interpretation,  the  courts  will  not  hold  him 


4.  A  resolution  of  the  county  board 
authorizing  a  town  to  borrow  money 
for  the  construction  of  a  bridge  was 
declared  invalid  for  non-conformity 
of  the  proceedings  with  Laws  1875, 
ch.  482,  empowering  the  board  to  pass 
euch  resolution,  and  the  town  offi- 
cers were  enjoined  from  performance 
of  the  bridge  contract,  which  they  had 
let  in  pursuance  of  such  resolution. 
Afterwards  a  second  proceeding  was 
had,  in  which  all  the  statutory  re- 
quirements were  observed.  Held, 
that  the  town  officers  were  not  guilty 
of  contempt  in  procuring  valid  au- 
thority for  executing  the  contract  in 
question,  and  in  entering  upon  the 
performance  thereof.  Barker  v.  Town 
of  Oswegatchie  (Sup.),  16  N.  Y. 
Supp.  732. 

5.  In  proceedings  for  contempt  for 
the  alleged  violation  of  a  decree  en- 
joining defendants  from  discharging 
into  a  certain  stream  any  of  the  tail- 
ings, debris,  or  refuse  matter  from 
certain  mines,  complainant's  wit- 
nesses testified  that  on  a  certain  day 
defendants  were  conducting  hydraulic 
mining  operations;  that  the  water 
used  ran  into  a  settling  pool,  and 
thence  through  a  \tunnel  into  the 
stream;  that  the  water  flowing  into 
the  settling  pool  was  laden  with  de- 
bris; that  the  water  in  the  tunnel, 
about  30  or  40  feet  from  its  mouth 


and  two  miles  from  the  mines,  was 
muddy;  that  witnesses  heard  large 
stones  rolling  along  the  bottom  of 
the  tunnel  in  the  water.  Defendants' 
evidence  showed  that  all  the  debris 
from  its  mines  was  run  into  the  set- 
tling pool,  where  the  coarse  material 
was  all  deposited,  the  pool  having  a 
dam  which  was  kept  higher  than  the 
water  in  the  pool,  and  only  the  water 
freed  from  the  debris  flowed  into  the 
tunnel.  It  was  not  shown  that  the 
water  flowing  out  of  the  settling  pool 
was  ever  discolored,  and  it  appeared 
that  sand,  gravel,  rocks  and  debris 
would  find  their  way  into  the  tunnel, 
irrespective  of  defendant's  mining  op- 
erations, from  other  sources.  Held, 
that  defendant  was  not  guilty.  Wood- 
ruff v.  North  Bloomfield  Gravel  Min. 
Co.,  45  Fed.  129.  In  Dawson  v. 
Paver,  5  Hare,  415,  424.  after  an  in- 
junction had  been  granted  restrain- 
ing the  defendant  from  permit- 
ting a  certain  injurious  effect  to 
be  produced  by  a  given  cause, 
but  not  otherwise  restraining  any 
definite  act,  the  apprehended  in- 
jury took  place,  but  the  defendant 
denied  that  it  arose  from  the  alleged 
cause;  the  court  refused  to  treat  the 
defendant  as  contumacious  until  it 
should  have  been  determined  by  a  ver- 
dict at  law  that  the  injury  was  pro- 
duced by  the  assigned  cause. 


412 


Violations  and  Punishment  of. 


§261 


to  be  in  contempt  for  disregarding  that  part  of  it.6  As  a  violation 
of  an  injunction  renders  the  party  enjoined  liable  to  both  loss  of 
property  and  liberty,  it  should  be  so  clear  and  certain  in  its  terms 
that  he  may  readily  know  what  he  can  and  cannot  do  under  its 
requirements.7  And  an  injunction  restraining  a  person  from  a 
specific  interference  with  property  in  issue  is  not  to  be  so  construed 
as  to  prevent  him  from  exercising  his  subsequently  accruing  rights 
in  respect  to  that  property,  when  a  wholly  different  situation  has 
supervened.8 

§  261.  Violation  often  determined  by  scope  of  terms The 

question  whether  or  not  there  has  been  a  breach  of  an  injunction 
must  often  turn  upon  the  scope  of  its  terms.  Thus  an  injunction 
decree  may  be  so  general  in  its  terms  as  to  apply  to  all  who  may 
occupy  or  use  certain  premises;  or  it  may  be  so  particular  in  its 
terms  as  to  apply  only  to  certain  persons  who  are  named.     If  an 


6.  The  findings  on  which  an  in- 
junction was  based  recited  that  de- 
fendants carried  on  the  business  of 
extracting  fish  oil  and  making  fish 
pumice,  and  also  the  business  of 
making  phosphate  manures;  that 
stenches  arose  from  and  during  the 
mixing  of  materials  to  make  phos- 
phate manures;  that  prior  to  the 
time  when  phosphate  manures  began 
to  be  manufactured  at  said  establish- 
ment the  business  of  extracting  fish 
oil  and  making  fish  pumice,  though 
producing  disagreeable  smells,  occa- 
sioned no  nuisance.  The  injunc- 
tion, after  restraining  the  mixing  of 
the  acids  and  materials  for  making 
phosphate  manures  between  certain 
dates,  except  as  by  law  provided, 
added:  "Nor  shall  said  business  be 
so  carried  on  ...  as  to  produce 
any  noxious  or  offensive  odors  con- 
stituting a  nuisance "  at  any  time. 
Held,  that,  if  defendants  did  not  con- 
tinue the  making  of  phosphate  ma- 
nures, they  were  not  guilty  of  con- 


tempt, as  the  injunction  was  either 
against  the  making  of  phosphate  ma- 
nures alone,  or  was  too  indefinite 
to  be  the  foundation  of  proceedings 
in  contempt.  Baldwin  v.  Miles,  58 
Conn.  496,  20  Atl.  618. 

7.  Rogers  M'f'g  Co.  v.  Rogers,  38 
Conn.  125,  where  it  was  well  re- 
marked that  "No  respondent  is  to  be 
entrapped  into  a  contempt  by  vague 
or  general  orders." 

8.  A  director  of  a  mining  corpora- 
tion which  was  enjoined  from  dispos- 
ing of  the  ores  to  any  other  persons, 
and  from  interfering  in  any  manner 
with  the  product  of  the  mines,  would 
not  be  deemed  guilty  of  contempt 
where  it  appeared  that  after  service 
of  the  injunction  on  the  corporation 
he  resigned  his  office,  and  sued  it 
upon  a  bona  fide  indebtedness  due 
him.  and  caused  a  sale  of  its  prop- 
erty in  satisfaction  of  the  judgment 
obtained.  Mexican  Ore  Co.  v.  Mexi- 
can Guadalupe  Min.  Co.,  47  Fed.  351. 


413 


§261 


Violations  and  .Punishment  of. 


injunction  is  not  directed  to  a  person  he  is  not  necessarily  bound 
to  obey  it  whatever  his  knowledge  of  it,  and  the  scope  of  an  in- 
junction should  not  ordinarily  be  extended  by  implication.9     An 


9.  Buhlraan  v.  Humphrey,  86  Iowa, 
597,  53  N.  W.  318,  per  Kinne,  J.: 
The  real  point  of  contention  in  this 
case  is,  is  a  decree  which  enjoins 
certain  parties,  naming  them,  from 
keeping  a  liquor  nuisance  in  certain 
described  premises,  binding  upon  a 
subsequent  purchaser  of  the  prem- 
ises or  his  lessees?  It  is  a  general 
rule  of  law  that  '  the  obligations  of 
an  injunction  will  not  usually  be  ex- 
tended to  persons  who  are  not  named 
in  the  writ,  and  they  will  not  be  li- 
able for  a  breach  of  a  mandate  which 
is  not  directed  to  them.'  Barthe  v. 
Larquie,  42  La.  Ann.  131,  7  So.  80. 
Plaintiff  insists  that  the  case  of  Sil- 
vers v.  Traverse,  82  Iowa.  52,  47  N. 
W.  888,  is  decisive  of  the  question 
here  presented.  That  was  a  case 
wherein  the  decree  enjoined  and  re- 
strained 'all  persons  from  using  or 
occupying  the  premises  for  unlawful 
keeping  or  traffic  in  intoxicating  li- 
quors,' and  the  question  arose  there 
whether  a  lessee  of  the  defendant  in 
the  injunction  proceeding  was  bound 
by  the  decree,  he  not  having  been  a 
party  to  the  action.  It  was  held  that 
he  was  concluded  by  the  decree.  In 
that  case,  by  the  very  terms  of  the 
decree,  it  applied  to  every  one  who 
should  thus  illegally  use  the  prem- 
ises. Not  so  in  the  case  at  bar, 
where,  by  the  express  wording  of  the 
decree,  it  is  limited  in  its  operation 
and  effect  to  the  parties  therein 
named.  By  no  reasonable  rule  of 
construction  can  such  a  decree  be 
said  to  run  against  or  attach  to  the 
property  in  the  hands  of  a  purchaser 
or  his  lessees.  Code,  §  1543,  pro- 
vides   that     'any    person    violating 


the  terms  of  any  injunction  '  to  abate 
the  nuisance,  etc.,  shall  be  punished 
for  contempt.  Clearly,  that  provi- 
sion must  mean  that  in  order  to  be 
guilty  of  a  contempt  the  violator 
must  be  one  who  is  within  the  terms 
of  the  decree.  To  our  minds  it  is  im- 
material whether  defendants  in  fact 
knew  of  the  injunction  or  not.  It 
was  not  directed  against  them;  it  did 
not  attach  to  the  property  as  against 
them;  it  simply  by  its  terms  enjoined 
the  defendants  in  the  injunction  suit 
from  doing  or  permitting  certain 
things  to  be  done.  An  injunction  is 
an  extraordinary  remedy,  and  its 
force  and  legal  effect  should  not  be 
extended  by  implication."  The  Na- 
tional Trotting  Association,  an  or- 
ganization composed  in  part  of  driv- 
ing park  and  track  associations,  and 
organized  for  the  promotion  of  trot- 
ting interests,  was  enjoined  from  in- 
vestigating a  charge  of  fraud  then 
pending  before  a  committee  of  the  as- 
sociation known  as  the  "  Board  of 
Review,"  or  from  passing  any  order 
of  suspension  or  expulsion  in  the 
case,  or  from  taking  any  further  ac- 
tion in  respect  to  said  charge.  Held, 
in  proceedings  for  contempt,  that  the 
Congress  of  the  National  Trotting 
Association,  composed  of  the  owners 
and  representatives  of  each  local  race 
course  within  this  association,  being 
a  different  organization,  and  created 
for  other  purposes,  could  suspend  the 
plaintiff  from  all  privileges  on  the 
courses  in  membership  with  the  Na- 
tional Trotting  Association  until  the 
injunction  was  dissolved  and  the 
charge  of  fraud  legally  investigated 
by  the   board   of   review.       Standard 


414 


Violations  and  Punishment  of. 


262 


injunction  which  is  general  in  its  terms  is  not  to  be  deemed 
restricted  by  a  reference  to  the  particular  nature  of  the  injury 
complained  of,  if  the  result  will  be  to  defeat  the  purpose  of  the 
injunction.10 

§202.  Contempt  proceedings  to  punish  violations. — An  affi- 
davit on  which  contempt  proceedings  are  based  is  not  fatally 
irregular  by  reason  of  its  allegations  being  on  information  and 
belief,  where  the  court's  jurisdiction  proceeds  from  an  order  to 
show  cause,  and  not  from  the  form  of  the  affidavit,  and  where 
the  commitment  is  based  not  on  the  affidavit  but  on  documentary 
evidence  and  oral  testimony  introduced  on  the  return  of  the  .order 
to  show  cause.11  And  generally  contempt  proceedings  are  not  to 
be  defeated  by  defects  which  do  not  affect  the  rights  of  the  parties, 
as  for  instance  a  misnomer  of  the  court  before  which  the  pro- 
ceedings are  pending;12  and  such  defects  are  waived  if  no  objection 
is  taken  to  them  at  the  time,  and  the  party  proceeds  as  if  there 
were  no  irregularity.13     So  though  an  information  in  contempt 


Stock    Farm     v.     National    Trotting 
Ass'n,  9  N.  Y.  Supp.  898. 

10.  In  Attorney  General  v.  Great 
Northern  R.  Co.,  4  DeGex  &  Sm.  75, 
the  company  was  interfering  with  a 
public  road  by  digging  a  trench  and 
lowering  its  level;  an  injunction  was 
granted  restraining  the  company 
from  obstructing  the  road  or  ren- 
dering the  same  less  convenient  for 
carriages  than  it  had  previously  been, 
until  they  had  made  a  proper  substi- 
tuted road.  The  company  then 
changed  their  plan  and  instead  of 
lowering  the  highway  carried  the 
railroad  across  it  on  a  level  with 
posts  and  gates  which  were  closed 
only  during  a  few  short  periods  in 
the  day  when  trains  crossed.  Held, 
that  the  general  terms  of  the  injunc- 
tion were  not  restricted  by  reference 
to  the  particular  nature  of  the  injury 
complained  of.  and  that  it  had  been 
violated  in  spirit  as  well  as  in  terms. 


11.  Golden  Gate  Con.  H.  M.  Co.  v. 
Yuba  Supreme  Court,  65  Cal.  187, 
190,  3  Pac.  628. 

12.  The  petitioners  were  convicted 
of  contempt  in  violating  an  injunc- 
tion in  a  case  in  which  the  complaint 
was  entitled  as  in  "  The  Supreme 
Court "  of  the  county,  while  the  other 
papers  were  entitled  as  of  "  The  Su- 
perior Court "  of  the  county,  where 
the  suit  was  brought.  Held,  that, 
though  Code  Civ.  Pro.  Cal.  §  405, 
provides  that  a  complaint  must  con- 
tain, inter  alia,  "  the  name  of  the 
court  and  county  in  which  the  action 
is  brought,"  yet  as  section  475  pro- 
vides that  the  court  "  must  disre- 
gard "  every  defect  in  the  pleadings 
which  does  not  affect  the  rights  of 
the  parties,  the  court  had  jurisdic- 
tion. In  re  Fil  Ki,  79  Cal.  584,  21 
Pac.  974. 

13.  Manderscheid  v.  District 
Court  Plymouth  Co.,   69  Iowa,   240, 


415 


§  262  Violations  and  Punishment  of. 

proceedings  is  defective  in  matter  of  form  yet  if  the  party  charged 
with  the  contempt  appears  without  objection  to  the  sufficiency 
of  the  information  and  affidavits  by  appropriate  motion,  and 
answers  and  goes  to  trial  the  objection  will  be  regarded  as  waived.14 
A  large  discretion  is  also  vested  in  the  court  granting  an  injunc- 
tion in  respect  to  the  enforcement  of  its  mandate  and  upon  pro- 
ceedings for  attachment  for  a  violation  of  the  injunction  the 
extent  of  the  fine  and  imprisonment  to  be  inflicted  for  the  contempt 
rests  in  the  sound  legal  discretion  of  the  court  itself.15  An  affidavit 
to  set  aside  contempt  proceedings  for  irregularity  should  be  made 
either  by  the  party  or  his  attorney,  and  unless  an  excuse  is  shown 
for  dispensing  with  this  affidavit,  the  affidavit  of  counsel  is  not 
sufficient.16  If,  on  motion  to  punish  an  attorney  for  contempt, 
the  proof  of  service  of  the  injunction  is  deemed  too  loose  and 
general,  a  reference  may  be  ordered  to  take  further  proof  in  respect 
to  such  service.17  And  affidavits  may  be  admitted  in  contempt 
proceedings  to  prove  a  violation  of  the  injunction.18  Sufficient 
notice  of  the  granting  of  an  injunction  may  be  given  by  telegram, 
but  if  it  is  sought  to  commit  for  contempt  a  person  who,  after 
receiving  such  notice,  violates  the  injunction,  the  court  must,  on 
the  particular  facts,  decide  whether  he  had,  in  fact,  notice  of  the 
injunction,  and  the  party  asking  for  the  committal  must  prove  the 
notice  beyond  reasonable  doubt.19  The  proceeding  to  punish  for 
the  violation  of  an  injunction  is  summary,  and  the  charge  of 
contempt  may  be  tried  on  the  original  affidavit  filed  in  such  pro- 
ceeding, without  any  formal  pleadings,  and  may  be  heard  and 
tried  by  the  judge  at  chambers  who  granted   the   injunction.20 

28   N.   W.  551.     In   New  Jersey   an  14.  Aaron  v.  United    States,    155 

order  to  show  cause  why  an  attach-  Fed.  833. 

ment  should  not  issue  for  violation  15.  Hake  v.   People,   230  111.    174, 

should,  after  it  is  advised  by  the  vice  82  N.  E.  56L  568.    Per  Vickers,  J. 

chancellor,   be   at  once   presented    to  16.  People    v.    Spalding,    2    Paige, 

the  chancellor  for  his  signature,  and  326. 

with  the  original  affidavits  on  which  17.  In  re  Schwarz,  14  Fed.  787. 

it  is  based  filed  in  the  clerk's  office;  18.  O'Brien  v.  People,  216  111.  354, 

otherwise     it     must     be     discharged.  75  N.  E.  108. 

Dowden  v.  Junker,  48  N.  J.  Eq.  554,  19.  Ex  parte  Langley,  L.  R.  13  Ch. 

22  Atl.  727.  D-  HO- 

20.  State  v.  Cutler,   13  Kan.   131. 

416 


Violations  and  Punishment  of.  §  263 

Where  there  are  conflicting  affidavits  as  to  the  alleged  contempt, 
an  attachment  may  be  issued  to  bring  the  defendant  into  court 
to  be  examined  on  interrogatories,  and  to  enable  complainant  to 
compel  the  attendance  of  witnesses.21  A  bill  of  particulars  can  not, 
however,  be  had  in  contempt  proceedings.22  In  Colorado  it  is 
decided  that  under  the  practice  in  that  State  a  warrant  of  attach- 
ment, for  violating  an  injunction  may  issue  in  the  first  instance 
without  first  making  an  order  to  show  cause,23  and  that  in  imposing 
a  fine  for  contempt  the  court  may  direct  that  the  party  be  com- 
mitted until  the  fine  is  paid  and  such  judgment  is  not  in  the 
alternative  nor  indefinite.24  Where  in  contempt  proceedings  for 
the  alleged  violation  of  an  injunction  the  injunction  is  not  made 
a  part  of  the  record,  it  will  not  be  assumed  to  have  been  broader 
than  the  prayer  of  the  bill.25 

§  263.  Same  subject  continued. — The  primary  purpose  of  pro- 
ceedings for  contempt  is  not  to  afford  a  remedy  to  the  party  com- 
plaining, and  who  may  be  injured  by  the  acts  complained  of.  Its 
purpose  is  to  vindicate  the  authority  and  dignity  of  the  court.26 
Contempt  proceedings  are,  however,  of  two  kinds:  civil,  or  re- 
medial, when  instituted  for  the  purpose  of  affording  relief  between 
the  parties  to  a  cause  in  chancery,  and  criminal  in  their  nature, 
when  having  for  their  object  the  punishment  of  an  offense  against 
the  authority  and  dignity  of  the  court.27  Where  the  contempt  pro- 
ceeding is  criminal  in  its  nature  it  is  unimportant  whether  injury 
to  the  complainant  is  shown  by  the  violation  of  the  injunction.28 
Where  a  contempt  proceeding  for  violation  of  an  injunction  is  to 

21.  McCredie   v.    Senior,  4  Paige,           26.  Chisolm  v.  Caines,    121     Fed. 
378.  397,  402.     Per  Simonton,  J. 

22.  O'Brien    v.     People,  216     111.           27.  Glay   v.    People,    94    111.    App. 
354,  75   N.   E.    108.  602,    citing    People   v.    Diedrich.    141 

2,3.  Shore  v.  People,  26  Colo.  516,       III.  665,  669.  30  N.  E.  1038.     Exam- 
59  Pac.  49.  ine  Smith  v.  Whitfield,  38  Fla.  211, 

24.  Shore  v.  People,  26  Colo.  516,       20  So.  1U12. 

59  Pae.  49.  28.  Glay   v.    People,    94    111.    App. 

25.  Detroit   &    Birmingham   P.   R.       602;    citing   People   v.    Diedrich,    141 
Co.  v.  De'roit  Citizens  S.  R.  Co.,' 97       111.  665,  671,  30  N.  E.  1038. 

Mich.  583,  56  N.  W.  940. 

417 
27 


§  264  Violations  and  Punishment  of. 

afford  a  remedy  to  the  party  complaining,  it  is  civil  and  not 
criminal,  and  an  appeal  will  lie  from  the  order  therein.29  And 
such  a  proceeding,  though  sometimes  entitled  in  the  name  of  the 
State,  may  properly  be  in  the  names  of  the  parties  to  the  original 
bill.30  Where  proceedings  are  brought  against,  a  person  for  con- 
tempt of  court  in  violating  an  injunction  there  cannot  be  a  re- 
covery for  the  damages  done  before  the  injunction  was  violated 
but  only  for  those  caused  by  the  violation  of  the  injunction.31  In 
construing  an  injunction,  it  is  not  to  be  supposed  that  it  was 
intended  to  restrain  acts  which  would  not  be  injurious  to  com-' 
plainant,  and  still  less  such  as  would  be  beneficial  to  him.32  An 
injunction  order  is  a  mandate,  disobedience  of  which  is  punish- 
able as  a  contempt,  if  there  has  been  personal  service  of  the  order, 
and  such  disobedience  is  held  to  defeat  or  impair  the  remedy  of 
a  party.33  So  one  who  is  in  contempt  by  reason  of  a  violation  of 
an  injunction  will  not  be  permitted  to  come  into  court  to  ask  any 
favor  until  he  has  purged  himself  of  the  contempt.34  So  a  defend- 
ant against  whom  there  is  prima  facie  evidence  of  being  guilty  of 
a  breach  of  an  injunction,  cannot  be  heard  upon  a  motion  to  dis- 
charge a  ne  exeat  against  him  in  the  same  cause,  until  he  has  purged 
himself  of  the  contempt.35  But  in  another  case  it  is  decided  that 
though  a  party  in  contempt,  even  when  the  court  has  not  adjudi- 
cated him  to  be  so  cannot  be  heard  to  ask  for  a  favor,  he  must  be 
heard  upon  a  matter  of  right.36 

§  2G4.  Collateral  attack  of  injunction  in  contempt  proceedings. 

29.  People  v.  Diedrich,  141  111.  ,32.  People  v.  Diedrich,  141  111. 
665  30  N.  E.  1038.  In  prosecutions  665,  30  N.  E.  1038;  Wilkinson  v. 
for  criminal  contempts,  all  proceed-  Nat.  Fire  Ins.  Co..  72  N.  Y.  499.  See, 
ings  subsequent  to  the  order  for  an  also.  Parker  v.  Wakeman,  10  Paige, 
attachment,  or  to  show  cause,  includ-  485;  Hudson  v.  Plets,  11  Paige,  180. 
ing  such  order,  should  be  in  the  name  33.  Boon  v.  McGucken,  67  Hun, 
of  the  people.     Stafford  v.  Brown,  4  251,  22  N.  Y.  Supp.  424. 

Paige,  360.  34.  Evans  v.  Van  Hall,  1  Clarke's 

30.  People  v.   Craft,  7   Paige    (N.       Ch.   (N.  Y.)  22. 

Y.),    324.      Examine    Crook    v.    Peo-  35.  Evans  v.  Van  Hall,  1  Clarke's 

pie,  16  111.  534.  Ch.    (N.   Y.)    22. 

31.  Wilkinson  v.  Dunkley-Will-  36.  Field  v.  Chapman,  13  Abb. 
iams   Co.    (Mich.    1907).    114   N.   W.  Prac.    (N.  Y.)    320. 

387. 

418 


Violations  and  Punishment  of. 


§264 


— Au  injunction  decree,  rendered  by  a  court  having  jurisdiction, 
cannot  be  collaterally  attacked  by  defendant,  when  attached  for 
violating  it;37  the  only  question  being  whether  the  injunction  has 
been  violated.38  "Where,  however,  a  motion  to  punish  the  party 
enjoined  for  a  violation,  raises  an  entirely  new  question,  as,  for 
instance,  where  the  infringement  of  a  patent  has  been  enjoined, 
the  contempt  proceeding  may  not  be  adapted  to  the  trial  of  it,  and 
in  such  a  case  the  motion  for  attachment  will  be  denied,  without 
prejudice  to  plaintiff's  right  to  file  a  supplemental  bill  in  the  orig- 
inal suit,  or  an  original  bill,  as  he  may  be  advised.39  And  in  pro- 
ceedings to  punish  for  contempt,  the  scope  and  operative  effect 
of  the  injunction  may  be  passed  upon,  in  order  to  determine  if 
there  has  been  any  violation  to  punish.40    One  who  is  in  contempt 


37.  State  v.  Kennedy,  65  N.  H. 
247,  23  Atl.  431,  per  Doe,  C.  J.: 
"  The  decree  rendered  by  a  court  hav- 
ing jurisdiction  is  not  void.  It  can 
be  impeached  only  in  a  direct  pro- 
ceeding, reasonably  instituted  by  a 
party  asking  that  it  be  reversed  or 
vacated.  State  v.  Richmond,  26  N. 
H.  232,  242,  247,  Wingate  v.  Hay- 
wood 40  N.  H.  437 ;  Home  v.  Roches- 
ter, 62  N.  H.  347;  Charles  v.  Davis, 
62  N.  H.  375;  Blanchard  v.  Webster, 
62  N.  H.  467;  Fowler  v.  Brooks,  64 
N.  H.  423;  McDonald  v.  Drew.  64  N. 
H.  547,  15  Atl.  148;  Kittredge  v. 
Martin,  141  Mass.  410,  6  N.  E.  95.  If 
the  validity  of  a  judgment  could  be 
contested  collaterally,  a  second  judg- 
ment, avoiding  the  effect  of  the  first, 
without  a  direct  and  express  annul- 
ment of  it.  would  be  subject  to  a  like 
attack,  and  there  would  be  no  termin- 
ation of  litigation  by  a  final  dec- 
ision." 

,38.  People  v.  Spalding,  2  Paige, 
326;  Whipple  v.  Hutchinson,  4 
Blatcnf.  190. 

39.  Defendants,  having  been  en- 
joined from  infringing  the  1st,  2d 
j*nd  6th  claims  of  letters  patent  No. 


271,398,  issued  January  30,  1883,  to 
John  G.  Baker,  for  a  machine  for 
mincing  meat,  etc.,  constructed  a  ma- 
chine in  exact  accordance  with  those 
claims,  but  having  in  addition  thereto 
a  detachable  frame  containing  three 
stationary  blades,  through  which  the 
meat  is  pressed  by  the  forcing  screw, 
thus  cutting  it  to  some  extent  before 
it  reaches  the  rotating  knives.  Plain- 
tiff moved  for  an  attachment  for  con- 
tempt, on  the  ground  that  the  detach- 
able frame  was  of  no  practical  value, 
but  defendants  filed  affidavits  alleg- 
ing that  with  the  attachment  from 
21  to  38  per  cent,  more  meat  was 
cut  than  without  it.  Held,  that  this 
presented  a  new  question,  which  could 
not  be  tried  in  a  contempt  proceed- 
ing. Enterprise  M'f'g  Co.  v.  Sargent 
(Cir.  Ct.),  48  Fed.  453.  See,  also, 
Allis  v.  Stowell,  15  Fed.  242. 

40.  In  proceedings  to  punish  for 
contempt  for  the  violation  of  an  in- 
junction contained  in  a  decree  ad- 
judging the  respondents  to  be  in  pos- 
session of  the  property  involved,  and 
enjoining  the  appellants  from  enter- 
ing upon  a  lode  thereon  or  digging 
thereon,  or    removing    or  extracting 


419 


§  265  Violations  and  Punishment  of. 

for  disobeying  an  injunction  will  not  ordinarily  be  allowed  to 
move  for  a  dissolution  of  the  injunction,  but  this  rule  is  not  in- 
flexible ;41  and  such  a  motion  may  be  allowed  where  the  nature  and 
extent  of  the  punishment  to  be  inflicted  for  the  contempt  depend 
upon  the  question  whether  the  injunction  shall  be  continued  or 
not.42  In  Wisconsin  a  technical  violation  of  an  ex  parte  injunction, 
which  ought  not  to  have  been  granted,  does  not  deprive  defendant 
of  his  legal  right  to  have  it  dissolved.43 

§  265.  Punishment  in  Iowa. — In  Iowa  it  is  decided  that  punish- 
ment must  follow  a  violation  of  an  injunction,  as  the  only  discre- 
tion allowed  by  tho  statute  to  the  courts  is  as  to  the  amount  of  the 
fine  or  the  term  of  imprisonment  within  the  statutory  limits;44 
and  a  refusal  by  the  District  Court  so  to  punish  will  be  taken  by 
certiorari  to  the  Supreme  Court  for  review.45  So  a  person 
adjudged  guilty  of  contempt  may  test  the  legality  of  the  proceed- 
ings by  certiorari,  though  he  did  not  except  to  the  judgment 
against  him,  certiorari  not  being  in  the  nature  of  an  appeal  but 
in  the  nature  of  an  original  proceeding.46  In  the  exercise  of  its 
discretion  as  to  the  amount  of  the  fine,  the  court  will  make  it  only 
nominal,  where  it  is  satisfied  the  offender  acted  under  a  sense  of 

ores  therefrom,  and  from  interfering  violation  for  appellants  to  remain  as 

with   or   hindering   respondents   from  they   were   when    the   injunction   was 

taking    possession   of    said    lode,    the  granted.     Bullion  Min.  Co.  v.  Eureka 

charge  made    against    the  appellants  Hill  Min.  Co.,  5  Utah,  151,   13  Pac. 

was  that  they  had  been  using  two  cer-  174. 

tain  drifts  under  a  part  of  the  prem-  41.  Bradford  v.  Peckham,  9  R.  I. 

ises    in    dispute    for   the    purpose   of  250. 

conveying    ores   to   shafts   of    appel-  42.  Endicott   v.    Mathis,    9    N.    J. 

lants,  and  thereby  hindered  and  ob-  Eq.    110;    Williamson    v.    Carnan,    1 

structed  respondents'  possession.  The  Gill  &  J.  184. 

evidence  showed  that  the  appellants  43.  Kaehler     v.     Dobberpuhl,     60 

were  in  possession  of  the  two  drifts  Wis.  256,   18  N.  W.  841. 

at     the    time    the    injunction     was  44.  Lindsay    v.    Hatch,    85    Iowa, 

granted,   and   there  was  no  evidence  332,  52  N.  W.  226. 

that  they  hindered  or  obstructed  the  45.  Lindsay   v.    Hatch,     85     Iowa, 

respondents    from     taking   possession  332,  52  N.  W.  226. 

and  working  the  lode.    Held,  that  the  46.  Coffey  v.   Gambler,   117   Iowa, 

injunction  could  not  be  used  to  eject  545,  91  N.  W.  813. 

the  appellants,  and   that   it  was   no 

420 


Violations  and  Punishment  of.  §  260 

duty  and  according  to  his  best  judgment,  and  promises  obedience 
for  the  future.47  Where  one  is  imprisoned  for  non-payment  of  a 
fine  imposed  for  violating  an  injunction  under  the  Iowa  statute, 
against  selling  liquor,  he  cannot  avail  himself  of  the  provision  of 
the  statute  authorizing  a  release,  after  thirty  days,  on  giving  a 
note.48  Each  court  must  see  to  it  for  itself  that  its  orders  are  not 
disobeyed,  and  the  court  of  equity  which  has  issued  an  injunction 
must  maintain  its  authority  and  punish  any  violation  of  it,  and  it 
is  proper  to  conduct  the  contempt  proceeding  under  the  title  of 
and  as  incident  to  the  injunction  suit.49  In  Iowa  when  contempt 
proceedings  for  breach  of  injunction  are  brought  before  a  judge 
at  chambers,  it  is  required  by  section  3403  of  the  Iowa  Code,  that 
a  copy  of  the  injunction  be  furnished  to  the  offender,  but  if  the 
proceedings  are  brought  before  the  court  it  is  sufficient  if  the  in- 
formation alleges  the  injunction  decree  and  its  violation,  and  refers 
to  the  record  of  the  decree.50 

§  2GG.  Who  may  institute  contempt  proceedings;  estoppel. 

An  injunction  obtained  to  protect  a  merely  private  right  is  so  far 
within  the  control  of  the  party  obtaining  it,  and  is  so  far  a  matter 
of  individual  concern,  that  only  those  who  have  a  present  interest 
in  the  right  to  be  protected  can  complain  of  the  breach  of  the 
injunction  and  move  for  its  punishment  as  a  contempt.  Thus 
where  an  injunction  restrained  defendant  from  the  manufacture 
of  I?uttan  furnaces  within  a  certain  territory,  and  the  plaintiff 
then  assigned  his  right  so  to  manufacture  to  others,  it.  was  held 
that  he  could  not  thereafter  have  an  attachment  against  defendant 
for  a  violation.51     And  it  was  held  that  stockholders  who  had 

47.  When  the  mayor  and  marshal  49.  Manderscheid  v.  District  Court 
of  a  city  have  disobeyed  a  mandate  of  Plymouth  Co.,  69  Iowa,  240,  28  N. 
the  court,  believing  it  their  duty  to  W.  551;  State  v.  Tipton,  1  Blackf. 
do  so  under  certain  city  ordinances,  166. 

their  fine  will   be   nominal,   provided  50.  Silvers  v.  Traverse,    82    Iowa 

they  agree  to  abide  by  the  order;  but  52,  47  N.  W.  888. 

they  must  pay  costs.     Des  Moines  St.  51.  Diedrich    v.    People.     141    HI. 

R.   Co.   v.  Des  Moines  Broad  Gauge  665,  37  111.  App.  604.  aff'd  30  N.  E. 

R.  Co.,  74  Iowa,  585   38  N.  W.  496.  1038.     See,  also,  Crook  v.  People.  16 

48.  Hanks  v.  Workman,  69  Iowa,  III.  534;  Hawley  v.  Bennett,  4  Paige, 
600,  29  N.  W.  638.  163. 

421 


$267 


Violations  and  Punishment  of. 


obtained  an  injunction  to  restrain  the  levy  of  taxes  on  certain 
property  of  the  corporation,  could  not  file  an  information  to  punish 
a  violation  after  the  property  had  been  sold  to  another  corporation 
under  a  decree  in  foreclosure.52  A  party  who  has  obtained  an 
injunction  may  release  it,  or  at  least  may  estop  himself  by  express 
agreement  or  his  conduct,  from  having  a  violation  adjudged  to 
be  a  contempt.53  And  a  complainant  who  himself  consents  to  a 
violation  is  thereby  estopped  from  having  the  defendant  punished 
for  it.6* 


is 


§  267.  Delay  in  punishing  for  contempt. — An  injunction 
not  waived  by  plaintiff  by  his  delay  in  applying  for  an  attachment 
for  its  violation ;  it  does  not  lie  with  the  violator  to  complain  that 
he  has  not  been  sooner  punished  ;55  or  has  not  been  punished  enough 


52.  Secor  v.  Singleton,  35  Fed.  376. 

53.  Mills  v.  Cobby,  1  Meriv.  3. 
In  Hull  v.  Harris,  45  Conn.  544, 
pending  a  proceeding  for  contempt 
in  disobeying  an  injunction  against 
the  diversion  of  water  from  a  spring. 
the  plaintiff  and  defendant  entered 
into  an  agreement  by  which  the  pro- 
ceeding was  to  be  continued  to  a 
future  day  and  the  defendant  was  to 
use  all  practicable  means  to  restore 
the  stream,  to  pay  the  plaintiff  his 
expenses  of  suit  and  also  such  dam- 
ages as  they  should  agree  on  or  be 
fixed  by  a  referee,  and  to  give  plain- 
tiff a  bond  that  his  right  to  the  water 
should  not  be  disturbed,  and  when 
this  was  done  the  proceeding  was  to 
be  withdrawn.  The  defendant  re- 
stored the  stream,  paid  the  expenses, 
but  did  not  pay  damages  or  give  the 
bond.  It  appeared  however  that  he 
had  called  on  plaintiff  for  his  claim 
for  damages,  which  had  been  refused. 
Held,  that  defendant  was  not  liable 
to  a  judgment  for  contempt.  Pro- 
ceedings on  attachment  for  contempt 
in  violating  an  injunction  were  per- 
mitted to    stand    over,    steps  being 


taken  to  permanently  abate  the  nui- 
sance, the  complainants  therefore  not 
invoking  immediate  action  by  the 
court;  but  attachment  to  be  promptly 
issued,  unless  the  nuisance  be  speed- 
ily abated.  King  v.  Union,  24  N. 
J.  Eq.  353. 

54.  Howard  v.  Durand,  36  Ga.  346. 

55.  Dale  v.  Rosevelt,  1  Paige  (N. 
Y.),  35.  See  In  re  Schwarz,  14  Fed. 
787.  Where,  upon  a  motion  for  an 
attachment  for  contempt  of  court  in 
having  disobeyed  an  injunction 
granted  by  the  court  below,  which  in- 
junction was  afterwards  dissolved, 
but  carried  by  appeal  to  the  Supreme 
Court,  it  appeared  that  the  appeal 
from  the  judgment  dissolving  the 
same  was  perfected  in  June  1886, 
and  that  the  notice  of  motion  for  the 
attachment  was  filed  on  the  ninth  of 
November  following  it  was  held  that 
the  complainant  was  not  guilty  Of 
laches  that  would  deprive  him  of  the 
benefits  of  the  injunction.  Gulf,  C.  & 
S.  F.  Ry.  Co.  v.  Fort  Worth  &  N.  O. 
Ry.  Co.,  68  Tex.  98,  105,  2  S.  W. 
199. 


422 


Violations  and  Punishment  or.  §  268 

to  meet  the  statutory  requirement.56  The  defendant,  however, 
though  knowing  of  the  injunction,  will  not  be  committed  for 
violating  it  where  the  complainant  has  allowed  a  long  time  to 
elapse  before  having  it  drawn  up  and  served;57  but  the  rule  just 
stated  does  not  apply  unless  the  laches  of  complainant  has  been 
such  as  to  mislead  the  defendant;  and  the  general  rule  that  the 
defendant  knowing  of  the  injunction  is  liable  for  breach  of  it, 
though  he  has  not  been  served,  is  not  confined  to  cases  where  the 
breach  was  committed  before  plaintiff  had  time  to  get  the  injunc- 
tion drawn  up  and  entered.58  A  perpetual  injunction  does  not 
become  dormant  by  the  mere  lapse  of  time,  and  an  execution  is 
not  necessary  to  continue  it  in  force,  and  therefore  it  may  always 
continue  to  be  sufficient  as  the  basis  of  a  contempt  proceeding 
against  one  who  violates  it.59  Where  an  order  for  a  temporary 
injunction  is  reversed,  an  order  punishing  one  for  contempt,  in 
disobeying  such  injunction,  has  been  held  to  fall  with  it;60  and  an 
attachment  for  violating  an  injunction  while  in  force  will  not  be 
issued  after  it  has  been  dissolved.61 

§  268.  Who  punishable  for  contempt. — Where  one  defendant 
is  served  with  the  injunction,  and  another  defendant,  who  is  not 
served  but  knows  its  contents,  violates  it  as  the  other's  agent  or 
servant,  he  may  be  punished  as  in  contempt.62  And  if  the  injunc- 
tion is  directed  to  the  defendant  only  without  including  agents  or 
servants,  an  agent  who  with  full  knowledge  of  the  injunction  does 
the  prohibited  acts,  may  be  committed  for  contempt,  though  not 
guilty  of  a  technical  breach.63    But  where  certain  city  contractors 

56.  People  v.  Spalding.  2  Paige  59.  State  v.  Durein,  46  Kan.  695, 
(N.  Y.),  326.  331.  27  Pac.  148. 

57.  James  v.  Downes,  18  Ves.  522.  60.  Krone  v.  Kings  County  El.  R. 

58.  United  Tel.  Co.  v.  Dale  L.  R.  Co..  50  Hun,  431,  3  N.  Y.  Supp.  149. 
25  Ch.  D.  778.  And  where  defend-  61.  Moat  v.  Holbein,  2  Edw.  Ch. 
ant  relies  for  an  excuse  on  the  com-  188. 

plainant's  acquiescence   in   the  viola-  62.  Aldinger    v.    Pugh,     57    Hun, 

tion  he  must  show  such  acquiescence  181,  10  N.  Y.  S.  684,  aff'd  132  N.  Y. 

as   creates    a   new    right    in    himself.  403,  30  N.  E.  745. 

Rodgers  v.  Nowill.  3  DeG.  M.  &  G.  63.  Wellesley    v.    Mornington,    11 

614.  Beav.  181. 

423 


§  269  Violations  and  .Punishment  of. 

were  enjoined  from  removing  the  track  of  a  railroad,  it  was  held 
that  the  mayor  of  the  city  was  not  in  contempt  for  ordering  the 
track  removed  by  others,  as  neither  he  nor  the  city  had  been  made 
parties  nor  enjoined.64  And  a  defendant  is  not  to  be  punished  for 
violating  a  writ  of  injunction  which  goes  further  than  the  prayer 
of  the  bill.65  An  injunction  directed  to  the  defendant,  his  agents 
and  employees,  is  binding  upon  the  defendant's  attorney,  who 
received  knowledge  of  it  in  open  court,  and  he  is  guilty  of 
contempt  though  at  the  time  of  his  breach  he  was  not  acting  for 
defendant,  but  for  purchasers  from  the  defendant.66  A  bailiff 
who  pays  over  money  in  violation  of  an  injunction  served  on  him 
will  be  responsible  to  the  plaintiff  in  the  injunction  for  the 
amount.67 

§269.  Landlord  and  tenant;  husband  and  wife. — Where  an 
injunction  is  issued  under  section  1543  of  the  Iowa  Code  provid- 
ing for  the  abatement  of  the  liquor  nuisance,  and  declaring  that 
any  person  violating  the  injunction  shall  be  punished  for  contempt, 
it  has  been  held  that  the  injunction  operates  upon  place  and  prop- 
erty as  well  as  in  personam,  and  that  a  person  using  the  place 
unlawfully  may  be  punished  for  contempt,  though  not  made  a 
party  and  though  the  injunction  be  not  in  terms  directed  to  him. 
And  the  tenant  of  the  party  enjoined  may  be  so  punished  for 
contempt.68  Where  a  landlord  lets  premises  and  his  tenant  sublets, 
and  the  sub-tenant  opens  a  saloon  in  violation  of  law,  and  the  land- 
lord and  sub-tenant  are  enjoined  from  keeping  the  saloon,  the 
landlord's  omission  to  take  steps  to  avoid  the  lease  and  to  re-enter 
the  premises,  are  not  sufficient  to  put  him  in  contempt  of  the 
injunction,69  though  in  such  a  case  he  might  have  been  in  contempt 
if  he  had  had  an  interest  in  the  saloon,  or  had  in  any  way  abetted 

64.  Boyd  v.  State,  19  Neb.  128.  67.  Randall  v.  Parkison,  7  Rob. 
See,  also,  VanZant  v.  Mining  Co.,  2        (La.)    134. 

McCrary,    643;    Iveson  v.   Harris,   7  68.  Silvers  v.  Traverse,   82   Iowa, 

Ves.  256.  52,  47  N.  W.  888. 

65.  Freeman  v.  Deming,  4  Edw.  69.  Koester  v.  State,  36  Kan.  27, 
Ch.  598.  12  Pac.  339. 

66.  Wimpy  v.  Phinizy,  68  Ga.  188. 

424 


Violations  and  Punishment  of.      §§  270,  270a 

or  participated  in  its  continuance.70  The  general  rule  is  that  a 
tenant  is  not  to  be  regarded  a3  included  within  the  scope  of  an 
injunction  which  is  directed  to  a  landlord  and  his  agents  or 
servants.71  And  a  husband  will  not  be  committed  for  his  wife's 
breach  of  an  injunction  if  he  has  not  been  privy  to  the  breach.72 

§  270.  Party  punishable  on  notice. — A  party  who  has  actual 
notice  of  an  order  for  the  immediate  issue  of  an  injunction  and 
disobeys  the  terms  of  it  as  ordered,  is  guilty  of  a  contempt,  though 
the  injunction  has  not  been  served  upon  him,  or  issued,  or  the 
order  formally  drawn  up;  but  where  it  is  ordered  that  an  injunc- 
tion shall  issue  upon  the  filing  of  the  bill,  such  order  is  conditional, 
and  there  is  no  injunction,  and  can  be  no  contempt  till  the  bill  is 
filed.73  A  notice  by  telegraph  of  the  granting  of  an  injunction  is 
sufficient  to  place  the  party  disregarding  such  notice,  in  contempt, 
provided  it  proceeds  from  a  source  entitled  to  credit,  and  informs 
the  defendant  clearly  from  what  act  he  must  abstain.74 

§  270a.  Facts  in  mitigation. — The  verbal  construction  of  an 
injunction  order  by  the  court  in  issuing  it  is  not  a  modification  or 
dissolution  of  the  same  but  may  be  considered  in  mitigation.75 
And  in  proceedings  for  contempt  for  violating  an  injunction,  evi- 
dence that  the  judge  stated  that  the  injunction  was  dissolved,  that 
no  formal  decree  was  necessary,  and  that  the  persons  enjoined 
might  proceed,  is  admissible  in  mitigation.76  And  where  defend- 
ant's employees  without  orders  drove  across  complainant's  rail- 
road after  award  of  injunction  to  restrain  trespass  on  its  roadway, 
and  the  defendant  disclaimed  all  evil  intent  it  was  held  error  to 
impose  a  fine  for  contempt.77     Again,  evidence  is  admissible  in 

70.  State  v.  Abrahams.  6  Iowa,  Langley,  L.  R.  13  Ch.  D.  110;  Ton- 
117;  Abrahams  v.  State,  4  Iowa,  541.       kinson  v.  Cartledge,  22  Alb.  L.  J.  123. 

71.  Hodson  v.  Coppard,  29  Beav.  4.  75.  Young  v.  Rothrock,  121  Iowa. 

72.  Hope  v.  Carnegie,  L.  R.  7  Eq.        588.  96  N.  W.  1105. 

260.  76.  Coffey    v.   Gamble,    117    Iowa, 

73.  Winslow  v.  Nayson,  113  Mass.       545,  91  N.  W.  813. 

411.  77.  Postal     Teleg.     Cable     Co.    v. 

74.  Cape  May,  etc.,  R.  Co.  v.  Norfolk  &  W.  R.  Co.,  8d  Va.  929,  14 
Johnson,  35  N.  J.  Eq.  422;  Ex  parte       S.  E.  691. 

425 


§271 


Violations  and  Punishment  of. 


mitigation  that  a  violation  was  by  employees  in  consequence  of  a 
misunderstanding  by  them  in  carrying  out  instructions  given  to 
them  and  that  if  such  instructions  had  been  followed  there  would 
have  been  no  violations.78  So,  too,  restitution  by  the  violator  doea 
not  relieve  him  from  his  liability  to  punishment,  but  is  a  fact  to 
be  considered  in  mitigation  of  the  penalty.79 

§  271.  Motive,  intent  or  belief,  as  excuse. — If  the  party  en- 
joined disobeys  the  injunction,  the  belief,  motive  or  intent  with 
which  he  disobeys  cannot  ordinarily  excuse  him.80  And  generally 
defendants  in  contempt  proceedings  for  disobeying  an  order  of 
injunction  can  not  set  up  their  opinion  as  to  the  meaning  of  the 
order  against  that  of  the  court,  and  still  less  can  they  justify 
themselves  by  showing  that  they  obeyed  the  order  in  part  while  at 
the  same  time  they  admit  the  violation  of  the  order  in  other 
essential  particulars.81  So  the  opinion  of  the  party  enjoined  that 
he  is  not  violating  the  injunction  does  not  excuse  the  violation.82 


78.  Boston  &  Montana  C.  C.  &  S. 
M.  Co.  v.  Montana  Ore  P.  Co.,  24 
Mont.  117,  60  Pac.  807.  So  holding 
where  a  foreman  misunderstood  di- 
rections given  to  him  to  run  a  drift 
in  a  mine  in  a  westerly  direction  and 
ran  it  in  an  easterly  direction  on  the 
mining  claim  of  complainant. 

79.  The  mere  fact  that  defendants 
removed  a  quantity  of  hay  from  a 
leased  farm  in  violation  of  a  valid 
injunction,  issued  at  plaintiff's  in- 
stance, is  sufficient  to  support  a  find- 
ing that  plaintiff's  rights  were  "  de- 
feated, impaired,  impeded,  or  preju- 
diced "  thereby,  as  required  by  Code 
Civ.  Pro.  N.  Y.  §  2266,  to  justify 
summary  punishment;  and  the  fact 
that  they  afterwards  brought  upon 
the  farm  the  equivalent  in  manure  of 
the  hay  so  taken,  thus  substantially 
complying  with  the  provisions  of  the 
lease,  did  not  deprive  the  court  of 
power  to  punish  them  for  contempt, 


but  was  only  a  fact  to  be  considered 
in  mitigation.  Aldinger  v.  Pugh,  57 
Hun,  181.  10  N.  Y.  Supp.  684,  132 
N.  Y.  403,  30  N.  E.  745. 

80.  Wilcox  Silver-Plate  Co.  v. 
Schimmel,  59  Mich.  524.  26  N.  W. 
692,  per  Champlin,  J. :  "  Neither  the 
belief,  motive  nor  intent  with  which 
the  writ  was  disobeyed  in  any  man- 
ner varies  the  responsibility  of  the 
party  who  violates  it  — citing  Peo- 
ple v.  Sturtevant,  9  N.  Y.  263,  59 
Am.  Dec.  536;  Richards  v.  West,  3 
N.  J.  Eq.  456;  People  v.  Spalding,  2 
Paige,  326;  Commercial  Bank  v. 
Waters,  10  Smedes  &  M.  559;  Mon- 
roe v.  Harkness,  1  Cranch.  C.  C.  157; 
Mead  v.  Norris,  21  Wis.  310;  Quack- 
enbusch  v.  Van  Riper,  3  N.  J.  Eq. 
350;  Romeyn  v.  Caplis,  17  Mich.  449. 

81.  Shirk  v.  Cox,  141  Ind.  301,  40 
N.  E.  750. 

82.  Where  defendant,  engaged  in 
selling  liquors  in  the  original  pack 


426 


Violations  and  Punishment  of. 


S271 


A  party  may,  however,  in  some  cases  be  excused  for  a  contempt 
where  he  acts  as  he  honestly  believes  he  is  authorized  to  do  by  the 
judge  granting  the  injunction;  and  in  such  a  case  a  judgment  of 
the  court  below  refusing  to  order  an  attachment  against  him  will 
not  be  disturbed.83  And  evidence  of  the  intent  and  good  faith  of 
a  person  charged  with  contempt  for  violating  an  injunction  will 
be  heard.84  So  the  court  will  not  ordinarily  regard  a  mere  techni- 
cal and  insignificant  violation  of  an  injunction  as  sufficient  cause 
for  punishment,  where  it  appears  from  the  evidence  that  there  was 
no  intention  of  violating  it.85  But  where  a  party  thus  excuses 
himself,  or  where  he  relies  for  an  excuse  upon  the  settlement  and 
withdrawal  of  the  injunction,  the  burden  of  proof  rests  upon  him, 
and  his  own  testimony  alone  is  not  sufficient  in  case  of  dispute.86 


ages  in  which  they  were  imported 
into  the  State,  is  temporarily  en- 
joined from  the  illegal  sale  of  liquor, 
it  is  no  excuse  for  a  violation  of  the 
injunction  that  defendant  thought 
that  such  sales  were  not  in  violation. 
State  v.  Bowman,  79  Iowa,  566,  44  N. 
W.  813. 

83.  An  order  having  been  granted 
restraining  defendant  from  paying 
out  money  in  his  hands  until  the  fur- 
ther order  of  the  court,  plaintiff  pre- 
sented a  petition  alleging  that  de- 
fendant had  paid  out  the  money  in 
violation  of  the  order,  and  prayed 
that  he  be  then  required  to  pay  the 
amount  into  court,  or  give  bond  for 
its  forthcoming,  or  in  default  thereof 
that  he  be  attached  for  contempt.  It 
appeared  that  defendant  was  insolv- 
ent; that  the  money  was  not  in  his 
possession,  custody,  or  control ;  that 
he  was  unable  to  raise  that  amount, 
and  could  not  give  the  bond  required; 
and  that  he  had  paid  out  the  money 
in  good  faith,  and  under  the  honest 
belief  that  he  was  authorized  so  to 
do  by  the  judge  who  had  granted  the 
restraining  order,  and  with  reason 
for    so    believing    which    the    judge 


deemed  satisfactory.  Held,  that  the 
judgment  of  the  court  beiow,  refusing 
to  order  the  process  of  attachment  to 
issue,  would  not  be  disturbed.  Salter 
v.  Tillotson,  89  Ga.  29.  14  S.  E.  903. 

84.  Young  v.  Rothrock,  121  Iowa, 
588,  96  N.  W.  1105;  State  v.  Collins, 
62  N.  H.  694;  Powers  v.  Von  Schmidt, 
87  Fed.  293. 

85.  Benton  &  Montana  C.  C.  &  S. 
M.  Co.  v.  Montana  Ore  P.  Co.,  24 
Mont.  117,  60  Pac.  807. 

86.  In  a  suit  to  set  aside  an  injunc- 
tion restraining  plaintiff  from  main- 
taining a  liquor  nuisance,  plaintiff's 
testimony  that  his  attorney,  in  the 
presence  of  the  judge  and  sheriff,  told 
him,  a  month  after  the  decree  was 
rendered,  that  if  he  paid  the  costs 
there  would  be  nothing  against  him; 
that  the  judge  said  that  that  would 
settle  it;  that  when  he  paid  the  costs 
the  sheriff  told  him  that  that  settled 
the  matter;  and  that  he  did  not  learn 
of  the  injunction  till  three  years  af- 
terwards— is  insufficient  to  show  that 
a  settlement  was  made,  where  neither 
the  judge  nor  attorney  is  called  to 
testify  as  to  the  matter,  the  attorney 
for  the  defendant    denies    the  settle* 


427 


§272 


Violations  and  Punishment  of. 


§  273.  Disclaimer  of  contempt  as  excuse  or  in  mitigation. — A 
formal  disclaimer  by  the  party  enjoined  of  an  intention  to  commit 
a  contempt  is  a  vain  excuse  when  it  is  belied  by  an  open  and  defiant 
disregard  of  the  injunction;87  and  a  violation  is  a  contempt  though 
not  wilful.88  But  such  disclaimer  will  sometimes  have  the  effect 
of  mitigating  the  penalty  imposed  on  the  offender;89  and  may  even 
Si  rve  to  excuse  a  party  where  the  violation  is  trifling  and  momen- 
tary and  apparently  the  result  of  necessity.90  And  where  defendant 
has  not  wilfully  disobeyed  an  injunction  restraining  him  from 


ment,  and  there  is  evidence  that  de- 
fendant, in  obedience  to  the  injunc- 
tion, closed  up  his  saloon  for  a  con- 
siderable time,  and  made  no  objection 
to  the  decree  till  several  months 
after  contempt  proceedings  were  be- 
gun against  him.  Geyer  v.  Douglass, 
85  Iowa,  93,  52  N.  W.  111. 

87.  Ex  parte  Huidekoper,  55  Fed. 
709. 

88.  A  judgment  continued  an  in- 
junction forbidding  defendants  to 
foreclose  a  certain  chattel  mortgage, 
but  without  prejudice  to  their  right 
to  bring  an  action  to  determine  the 
rights  of  all  parties  in  the  mortgage. 
An  affidavit  stated  that  the  order  was 
served  on  defendants,  and  the  fact  was 
not  denied  by  defendant  D.,  who  was 
fully  advised  of  the  provisions  of  the 
judgment.  Held,  that  D.,  having  veri- 
fied a  complaint  and  affidavit  of  at- 
tachment in  an  action  by  defendants 
in  the  injunction,  for  the  foreclosure 
of  such  mortgage,  was  guilty  of  con- 
tempt, and  that  it  was  immaterial 
that  he  was  not  guilty  of  a  willful 
violation  of  the  order.  Gage  v.  Den- 
bow,  49  Hun,  42,  1  N.  Y.  Supp.  826. 

89.  Watson  v.  Citizens'  Savings 
Bank,  5  S.  C.  159,  182,  per  Moses,  C. 
J. :  "  We  do  not  fee1  the  force  of  the 
argument  on  the  part  of  the  counsel 
that  a  mere  disclaimer  of  all  inten- 


tion of  contempt,  where  it  is  of  a 
constructive  kind,  so  completely 
purges  it  as  concludes  all  further 
proceeding.  The  authorities  do  not 
sustain  the  proposition  to  the  extent 
stated.  Such  a  rule  would  make  the 
court  powerless  to  punish  even  a 
gross  contempt  on  the  mere  dis- 
claimer of  all  intention.  While  the 
intention  is  often  the  criterion  by 
which  criminal  acts  are  judged,  the 
absence  of  it  in  the  perpetration  of 
wrong  does  not  always  discharge  one 
from  the  consequences  which  may  fol- 
low. It  is  true  that  a  disavowal  of 
purposes,  with  aii  expression  of  re- 
gret that  such  a  construction  has 
been  put  on  the  act  of  a  party  as  to 
hold  him  answerable  for  a  contempt 
will  operate  to  his  benefit  in  the 
measure  of  the  penalty." 

90.  Defendant  should  not  be  pun- 
ished for  a  contempt  for  disobeying  a 
temporary  injunction  granted  in  a 
suit  to  restrain  a  trespass  on  plain- 
tiff's roadway,  where  all  evil  inten- 
tion is  disclaimed,  and  the  only  thing 
done  was  the  crossing  of  the  railroad 
by  some  of  defendant's  employees  in  a 
wagon  by  a  private  roadway,  the 
usual  route  being  interrupted  by  the 
destruction  of  a  bridge.  Postal  Tel. 
Cable  Co.  v.  Norfolk  R.  Co.,  88  Va. 
929,  14  S.  E.  691. 


428 


Violations  and  Punishment  of. 


§273 


using  a  patent,  it  is  sufficient  to  make  him  pay  all  the  damages 
caused  by  such  use,  with  the  costs  of  the  contempt  proceedings.91 

§  273.  Advice  of  counsel  as  an  excuse. — The  party  enjoined  is 
not  excused  in  violating  an  injunction  by  the  advice  of  his  counsel 
that  his  act  would  not  be  a  violation  ;92  but  if  he  seeks  the  advice 
of  counsel  with  a  manifest  desire  to  abide  by  the  law  and  not 
violate  the  injunction,  the  courts  will  be  reluctant  to  punish  his 
mistake  or  to  find  therein  a  contempt  of  their  dignity,93  and  will 
allow  him  to  purge  his  technical  contempt  without  a  fine  and  on 
payment  of  costs,94  or  of  the  damages  sustained  by  the  adverse 
party.95  And  if  he  acts  in  good  faith  and  under  advice  of  counsel, 
and  causes  but  trifling  injury  to  the  enjoining  party,  hi?  offense  is 
mitigated.96     Therefore  in  proceeding  for  contempt  for  violating 


91.  Ready  Roofing  Co.  v.  Taylor,  15 
Blatchf.  94. 

92.  United  States. — Ulman  v.  Rit- 
ter,  72  Fed.  1000;  Hamilton  v.  Si- 
mons, Fed.  Cas.  No.  5991,  5  Biss.  77. 

Iou-a. — Lindsay  v.  Hatch,  85  Iowa, 
332,  744,  52  N.  W.  226,  227. 

~New  Jersey. — McKillop  v.  Taylor 
25  N.  J.  Eq.  139. 

~Sew  York. — Boon  v.  McGucken,  67 
Hun,  251,  22  N.  Y.  Supp.  424;  Peo- 
ple v.  Edson,  51  N.  Y.  Super.  Ct.  238; 
Copet  v.  Parker,  5  N.  Y.  Super  Ct. 
662;  Hawley  v.  Bennett,  4  Paige,  163. 

~Sorth  Carolina. — Green  v.  Griffin, 
95  N.  C.  50. 

South  Carolina. — Columbia  Water 
Power  Co.  v.  City  of  Columbia,  4 
Rich.  388;  Burton  Dinsmore  v.  Louis- 
ville N.  A.  &  C.  R.  Co.,  3  Fed.  593. 

A  defendant  -who,  when  en- 
joined from  selling  a  certain 
cordial  in  certain  bottles  with  a 
particular  label,  sells  its  entire  stock 
of  the  cordial,  bottles,  and  labels  to 
a  third  person,  under  an  arrangement 
that  he  would  fill  such  orders  for  the 
cordial    as    the   defendant   might   re- 


ceive is  guilty  of  a  violation  of  the 
injunction,  though  the  defendant  did 
not  share  in  the  profit  of  filling  such 
orders,  and  though  it  had  received 
the  advice  of  counsel  that  it  might 
sell  its  stock  in  bulk  without  violat- 
ing the  injunction.  Societe  Anonyme 
v.  Western  Distilling  Co.,  42  Fed.  96. 

93.  Boon  v.  McGucken,  67  Hun, 
251,  22  N.  Y.  Supp.  424,  430;  People 
v.  Aitken.  19  Hun,  329. 

94.  Carstaedt  v.  United  States 
Corset  Co..  13  Blatchf.  (U.  S)  371; 
Bradford  v  Peckham,  9  R.  I.  2Z0. 

95.  Matthews  v.  Spangenberg  15 
Fed.  813;  Lansing  v.  Easton,  7  Paige 
(X.  Y.),  364. 

96.  Prior  to  January  2.  1891,  two 
factions  were  each  endeavoring  to  ob- 
tain control  of  the  affairs  of  a  com- 
pany, and  one  of  them  had  obtained 
an  injunction  to  restrain  defendant 
from  attempting  to  act  as  business 
manager  of  the  company,  or  to  enter 
on  Its  premises  for  that  purpose.  Af- 
terwards defendant  was  elected  busi- 
ness manager  of  the  compmy  by  his 
faction,  and  was  advised  by  counsel 


§  274  Violations  and  Punishment  of. 

an  injunction  evidence  that  the  defendant  acted  on  the  advice  of 
counsel  is  admissible  in  mitigation.97  So  it  is  decided  in  a  case 
in  New  York  that  the  fact  that  the  defendant  acted  under  the 
advice  of  counsel,  in  violating  an  injunction,  is  no  justification 
and  merely  goes  in  mitigation  to  the  extent  that  the  court  is 
satisfied  that  the  advice  was  sought,  obtained  and  acted  on  in  good 
faith.98 

§  274.  Contempt  of  receiver. — Where  it  appears  that  a  receiver 
has  funds  in  his  hands  sufficient  to  satisfy  a  lien  thereon,  and 
wilfully  refuses  on  demand  to  obey  an  order  of  the  court  directing 
him  to  pay  such  lien,  it  is  a  justifiable  inference  that  such  conduct 
impedes,  impairs  and  defeats  the  rights  and  remedies  of  the  lien 
or  to  the  extent  of  the  lien,  and  upon  an  adjudication  to  that  effect 
a  fine  may  be  imposed  on  the  receiver  to  the  amount  of  the  lien, 
and  is  not  limited  to  the  amount  provided  by  Code  with  costs  and 
expenses;  and  in  such  a  case  it  is  not  necessary  that  the  order 
imposing  the  fine  should  in  form  adjudge  that  actual  loss  or  injury 
has  been  sustained  to  the  amount  of  the  fine,  if  it  appears  that  such 
loss  has  been  suffered,  nor  is  it  essential  to  show  that  the  loss  is 
irremediable.99  Such  a  wilful  refusal  of  a  receiver  to  obey  an 
order  requiring  a  payment  by  him  out  of  funds  in  his  hands  as 

that  he  was  entitled  to  take  posses-  97.  Coffey   v.    Gamble,    117    Iowa, 

sion  of  the  office  of  the  company  and  545,  91  N.  W.  813. 

administer  its  affairs,  which  he  did  98.  Stolts  v.  Tuska,  82  App.  Div. 

by  entering  the  office  with  his  party,  (N.  Y.)   81,  84,  81  N.  Y.  Supp.  638. 

ejecting  the  office-boy,  procuring  the  Per   Laughlin,   J.,   citing   New   York 

Bafe  to  be  opened,  and  discharging  an  Mail  &  N.  T.   Co.  v.   Shea,  30  App. 

employee   of    the   company.     Held   a  Div.  374;  People  v.  Compton,  1  Duer, 

violation    of     the     injunction    order,  512;  Ciancimino  T.  &  T.  Co.  v.  Cian- 

whether  his  election  was  or  was  not  cimino,    43    N.    Y.    St.    R.    49,    aff'd 

valid;  but  that,  having  acted  under  133     N.     Y.     672,     21     N.    E.    625; 

the  advice  of  counsel,  and  no  loss  or  Erie  Ry.  v.   Ramsey,  45   N.   Y.   637, 

damage   to  the   company   having  ac-  654,  655 ;  Hawley  v.  Bennett,  4  Paige, 

crued  therefrom,  defendant's  term  of  163;  Rogers  v.  Paterson,  4  Paige  450. 

imprisonment  should  be  reduced  from  99.  Clark   v.    Bininger,    75    N.    Y. 

30  to  10  days.     Cianeimino's  Towing  344;   Sudlow  v.  Knox,  7  Abb.  N.  S. 

&  Transp.  Co.  v.  Ciancimino   (Sup.),  411. 
17  N.  Y.  Supp.  125. 

430 


Violations  and  Punishment  of.  §  275 

receiver,  is  quite  different  in  principle  from  an  ordinary  case  of 
failure  to  comply  with  a  direction  to  pay  a  sum  of  money  generally.1 

§  275.  Punishing  contempt  in  supplementary  proceedings. — 

Where  a  judgment  debtor  kept  in  bank  an  alleged  trust  account, 
but  placed  therein  all  of  his  earnings,  he  was  adjudged  guilty  of 
contempt  for  drawing  therefrom  for  family  expenses  after  service 
upon  him  of  the  usual  restraining  order  in  supplementary  pro- 
ceedings.2 An  injunction  in  supplementary  proceedings  restrain- 
ing the  debtor  from  transferring  his  property  "  until  further  order 
in  the  premises,"  is  broad  enough  to  enjoin  a  transfer  by  him  of 
an  interest  he  has  in  the  estate  of  a  deceased  son,  which  consists 
of  a  cause  of  action  for  damages  for  negligence  causing  the  death 
of  his  son,  and  a  transfer  of  such  interest  after  he  is  served  with 
the  restraining  order,  is  a  contempt  for  which  he  may  be  punished 
by  fine  to  be  enforced  by  warrant  of  commitment.3  And  the  fact 
that  the  party  who  has  violated  the  restraining  order  subsequently 
becomes  alarmed  and  saves  the  party  obtaining  the  order  from  the 
loss  attendant  upon  the  violation,  does  not  relieve  him  from  liability 
therefor,4  but  may  serve  to  mitigate  the  penalty.5  In  order  to 
support  a  conviction  for  contempt  in  disobeying  an  injunction  in 
supplementary  proceedings  forbidding  the  transfer  of  property,  it 
must  be  shown  that  the  legal  title  is  in  the  judgment  debtor.6    And 

1.  Watson  v.  Nelson,  69  N.  Y.  536,  fine  of  $250  and  costs  would  be  im- 
645;  People  v.  Cowles,  3  Abb.  Ct.  posed,  and  if  not  paid  in  ten  days 
App.  Dec.  507,  510.  enforced  by  commitment.     Where  in 

2.  People  v.  Kingsland.  3  Keyes  violation  of  the  injunction  the  debtor 
(N.  Y.);  325,  where  it  was  held  that  disposes  of  property  the  amount  of 
a  fine  of  $400  was  not  unreasonable,  the  fine  to  be  imposed  must  be  regu- 
he  having  withdrawn  $356.25.  lated  according  to   the  value  of  the 

3.  Wynkoop  v.  Meyers,  17  N.  Y.  property  and  not  by  the  amount  of 
Civ.  Pro.  443,  7  N.  Y.  Supp.  898.  In  the  judgment,  where  it  exceeds  the 
this  case  as  the  amount  of  the  debt-  value  of  the  property.  Feely  v.  Glen- 
oids interest  could  not  be  determined  nen,  2  Law  Bull.  19. 

until  an  accounting  had  been  had  in  4.  Aldinger  v.  Pugh,  57  Hun,   181. 

the  surrogate's  court,  the  probability  10  N.  Y.  Supp.  684,  aff'd  132  N.  Y. 

that   it   would   exceed   the   plaintiff's  403.  30  N.  E.  745. 

judgment  would  not  warrant  the  im-  5.  King  v.  Barnes,  113  N.  Y.  476, 

position  of  a  fine  based  on  that  con-  21  N.  E.  182. 

jecture,  but  as  substantial  injury  had  6.  Beard   v.   Snook,    47   Hun,    158. 

been  done   the  judgment  creditor,  a  In  this  case  the  defendant  was  ad- 

431 


§275a 


Violations  and  Punishment  of. 


in  such  a  proceeding  the  positive  testimony  of  the  party  enjoined 
that  the  legal  title  was  not  in  him,  if  corroborated  by  witnesses, 
cannot  be  overthrown  merely  by  the  proof  of  suspicious  circum- 
stances.7 

§  275a.  Violations  by  corporations;   officers   and  employees 

of. A  private  corporation  may  be  punished  for  contempt  where 

it  violates  the  terms  of  an  injunction,8  and  may  be  charged  with 
violatiug  an  injunction  directed  to  its  officers  and  violated  by 
them,9  and  may  be  fined  for  such  violations.10    And  a  common  car- 


judged  to  pay  plaintiff  $625.66  as  a 
fine  for  his  misconduct,  and  to  be  im- 
prisoned until  it  was  paid,  but  the 
order  was  reversed.  See,  also,  Dean 
v.  Hyatt,  5  N.  Y.  W.  Dig.  67. 

7.  Slater  v.  Merritt,  7  N.  Y.  W. 
Dig.  510. 

8.  Golden  Gate  M.  Co.  v.  Superior 
Court,  65  Cal.  187,  3  Pac.  628; 
Mayor  of  City  of  New  York  v.  Mew 
York  &  S.  I.  F.  Co.,  64  N.  Y.  622. 

In  an  early  case  in  New  York  it  is 
said  in  this  connection :  "  It  is  no 
answer  to  say  that  the  act  of  the  cor- 
poration is  manifested  and  carried 
into  effect  by  individuals,  and  that 
those  persons  are  always  liable  to 
the  process  of  the  law  and  may  be 
punished  and  therefore  the  injured 
party  always  has  the  means  of  re- 
dress. It  is  a  poor  compliment  to 
say  that  while  the  principal  is  the 
real  offender,  though  you  cannot 
reach  him  you  can  reach  his  agent, 
his  instrument.  Beside,  the  agent 
may  be  entirely  irresponsible,  or  com- 
paratively innocent.  And  why  can- 
not a  corporation  be  punished  for 
contempt?  It  is  said,  because  it 
cannot  be  attached,  that  is,  person- 
ally seized  or  taken.  This  shows  no 
sufficient  reason.  In  the  former  equity 
practice  it  sometimes  became  neces- 
sary to  order  a  corporation  to  answer 


a  bill  in  chancery.  If  it  refused  it 
was  not  strictly  attached,  as  a  nat- 
ural person  would  be,  but  a  dis- 
tringas, or  writ  authorizing  a  dis- 
tress upon  its  property,  was  issued; 
this  failing,  a  second,  and  sometimes 
a  third  was  issued,  and  if  all  these 
were  insufficient,  then  process  of  se- 
questration was  issued  against  it  and 
its  property  sequestered  for  the  ben- 
efit of  the  aggrieved  party.  Why  may 
may  not  process  of  sequestration  be 
issued  against  it  to  punish  it  for 
contempt  in  violating  an  injunction 
as  well  as  contempt  in  refusing  to 
answer?  Why  may  it  not  be  fined  for 
the  contempt,  and  the  fine  collected 
in  the  ordinary  way?  Corporations 
are  often  ind.cted  for  neglect  of  duty 
or  for  positive  misfeasance  and  the 
punishment  upon  conviction  is  by  the 
imposition  of  a  fine.  The  punish- 
ment by  fine  for  a  contempt  is  one 
of  the  usual  modes  of  punishment 
and  directly  recognized  by  statute." 
People  v.  Albany  &  Vermont  R.  R. 
Co.,  12  Abb.  Prac.  (N.  Y.)  171,  173. 
Per  Hogeboom,  J. 

9.  Where  an  injunction  has  been 
granted  against  the  treasurer  of  a 
corporation,  restraining  him  from 
collecting  any  royalties  or  dividends 
of  stock  due  the  corporation,  and 
such  royalties  and  dividends  are  af- 


432 


Violations  and  Punishment  of.  §  275a 

rier  cannot  excuse  its  violation  of  an  injunction  upon  the  ground 
that  its  imperative  duty  to  the  public  demanded  such  violation.11 
So  officers  and  agents  of  a  corporation  are  bound  by  an  injunction 
against  the  corporation  restraining  it  from  disposing  of  property.12 
And  in  a  case  in  New  York  it  is  said  that  the  effect  of  an  injunc- 
tion restraining  acts  of  a  corporate  body  and  addressed  in  the 
ordinary  way  to  it  or  its  agents  i9  to  bind  not  only  the  intangible 
artificial  being  but  also  all  the  individuals  who  act  for  the  corpora- 
tion in  the  transaction  of  its  business  to  whose  knowledge  the 
injunction  comes.13  And  where  an  injunction  was  issued  against 
a  railway  company,  its  assigns,  agents,  employees  and  any  one 
acting  by  its  authority  and  in  its  behalf,  but  was  not  against  the 
president  of  the  company  by  name,  it  was  decided  that  where  he, 
with  notice  of  the  injunction,  did  what  the  company  was  pro- 
hibited from  doing,  he  could  be  prosecuted  for  its  violation  by 
him.14  Receivers  of  a  corporation  who  are  appointed  by  a  Federal 
court  subsequent  to  the  granting  of  an  injunction  against  the  com- 
pany by  a  State  court  are  also  bound  to  observe  and  obey  the 
injunction  while  it  is  in  force  and  may  be  punished  for  contempt 
where  they  disobey  it.15  But  an  officer  of  a  corporation  will  not 
be  adjudged  in  contempt  when  other  servants  of  the  corporation 
violate  an  injunction  in  spite  of  his  efforts  to  secure  obedience 
to  it.JG     And  the  employees  of  a  corporation  which  has  been  en- 

terwards  paid  into  its  treasury,  the  12.  Sidway  v.  Missouri  Land  &  L. 

treasurer  and    corporation    are  alike  S.  Co.,   116  Fed.  381. 

guilty  of  contempt,  and,  upon  a  dis-  13.  People  v.   Sturtevant,  9  N.  Y. 

solution  of  the  injunction  are  not  en-  263,  59  Am.  Dec.  536. 

titled  to  recover  damages  for  deten-  14.  State  of  Kansas  v.  Cutter,  13 

tion  of  the   fund.     Heck  v.   Bulkley  Kan.  131. 

(Tenn.),  1  S.  W.  612.     See  Hedges  v.  15.  Safford  v.  People,  85  111.  558. 

Superior  Court,  67   Cal.  405,  7  Pac.  16.  A    superintendent    of    a    rail- 

767.  road  company  will  not  be  adjudged  to 

10.  New  York  City  v.  New  York  be  in  contempt  for  violation  of  a  de- 
Ferry  Co..  64  N.  Y.  622;  People  v.  cree  enjoining  the  company  from  op- 
Albany,  etc.,  R.  Co.,  12  Abb.  Pr.  171;  erating  its  engines  in  front  of  a 
United  States  v.  Memphis,  etc.,  R.  house,  where  the  disobedience  is  that 
Co..   6  Fed.  237.  of  the  company's  servants,   who   dis- 

11.  Kentucky  &  Indiana  Bridge  regarded  his  orders,  he  having  made 
Co.  v.  Krieger,  91  Ky.  625,  16  S.  W.  an  earnest  effort  to  secure  obedience. 
824.  Pennsylvania  R.  Co.  v.  Thompson,  49 

N.  J.  Eq.  318,  24  Atl.  544. 

433 

28 


§  276  Violations  and  Punishment  of. 

joined  may  without  contempt  of  court  avoid  obedience  to  the 
injunction  by  ceasing  to  be  such  employees;17  but  such  withdrawal 
must  be  in  good  faith  and  not  merely  temporary  and  for  the 
purpose  of  evading  such  obedience.18  A  municipal  corporation 
cannot,  however,  be  guilty  of  contempt  in  disobeying  an  injunc- 
tion ;  such  contempt,  if  any,  in  disobeying  a  writ  directed  to  such 
a  corporation  is  the  contempt  of  individual  persons,  as  for  instance 
the  officers  of  the  city.19  So  though  a  municipal  corporation  can- 
not be  attached  for  violation  of  an  injunction,  its  offending  officers 
may  be.20  The  deliberate  disobedience  of  an  injunctional  order 
by  county  officers  in  proceeding  with  general  road  work  and  paying 
for  the  same  can  not  be  in  good  faith  and  there  can  be  no  rati- 
fication of  their  act  by  the  county  board,  or  any  estoppel,  which 
would  nullify  the  command  of  the  court.21 

§  276.  Contempt  proceedings  against  corporation;  affidavits. 

— An  order  to  show  cause  why  a  corporation  should  not  be 
punished  for  contempt  in  violating  an  injunction,  may  be  served 
on  the  attorney  for  the  corporation  in  the  injunction  suit,  when  its 
managing  agents  conceal  themselves  to  avoid  service.22    Where  an 

17.  Toledo,  etc.,  R.  Co.  v.  Pennsyl-  union,  and  in  good  faith  quit  their 
vania  Co.,  54  Fed.  730.  employment  before  starting  on  their 

18.  An  engineer  of  a  railroad  com-  run,  may  not  be  in  contempt.  Toledo, 
pany  which  has  been  enjoined  from  etc.,  R.  Co.  v.  Pennsylvania  Co.  (C. 
refusing  to  haul  the  cars  of  a  boycot-  C. ) ,  54  Fed.  746. 

ted  connecting  line,  of  which  injunc-  19.  Bass  v.  City  of  Shakopee,  27 

tion  he  has  notice,  although  he  has  Minn.   250,   4  N.    W.   619,   6   N.   W. 

not  been  made  a  party  thereto,  and  776,   citing  Davis  v.  Mayor  of  New 

who,  while  on  his  run,  refuses  to  at-  York,  1  Duer   (N.  Y.),  451,  484,  509 

tach  such  a  car  to  his  train,  and  de-  510;  London  v.  Lynn,  1  H.  Bl.  206. 
clares  that  he  quits  his  employment,  20.  Bass  v.  City  of  Shakopee,  27 

but  nevertheless  remains  with  his  en-  Minn.  250,  4  N.  VV.  619,  6  N.  W.  776; 

gine  at  that  point  for  five  hours,  un-  Davis  v.   Mayor,  etc.,    1   Duer,   451  ,• 

til   he  receives   a   telegram   from  his  London  v.  Lynn,  1  H.  Bl.  206. 
labor  union  to  haul  the  car.  and  who  21.  Webster   v.    Douglass    County, 

thereafter  continues    in    his  employ-  102  Wis.   181,  77   N.  W.  855,  78  N. 

ment,  is  guilty  of  contempt  for  vio-  W.  451.  72  Am.  St.  Rep.  870. 
lating   the    injunction,    although    en-  22.  Eureka  Lake    &    Yuba  Canal 

gineers  who  refuse  to  haul  such  cars  Co.  v.  Superior  Court,  66  Cal.  311,  5 

in   obedience  to  a  rule  of  the  labor  Pac.  490. 


434 


Violations  and  Punishment  or.      §§  276a,  277 

affidavit  in  contempt  proceedings  against  officers  of  a  corporation 
for  violating  an  injunction  which  ran  against  the  corporation,  its 
officers,  etc.,  did  not  in  terms  state  that  the  persons  complained  of 
were  officers  of  the  corporation,  but  it  did  state  that  they  knew  of 
the  issuing,  service  and  contents  of  the  injunction,  and  that  they 
did  the  acts  in  violation  of  the  injunction  which  were  complained ; 
it  was  held  to  be1  sufficient.23 

§  276a.  Injunction    against    partnership;    violation    of If 

through  inadvertence  a  party  permits  his  partner,  agent,  or  em- 
ployees to  do  the  enjoined  act  he  is  himself  guilty  of  a  violation.24 
And  a  permanent  injunction  restraining  a  firm  from  doing  certain 
partnership  acts  continues  to  be  effective  against  the  persons  com- 
posing it  after  a  change  in  the  partnership  name  and  such  persons 
may  be  punished  for  its  violation.25 

§  277.  Who  can  punish  violations. — It  is  regarded  as  element- 
ary that  only  the  court  which  granted  the  injunction  has  power 
to  punish  its  violation  as  a  contempt,  or  to  entertain  proceedings 
for  that  purpose.26  Formerly  a  motion  for  an  attachment  for  the 
violation  of  an  injunction  issued  by  a  State  court  could  not  be 
allowed  by  a  Federal  court  after  removal  of  the  case  to  that  court ;" 
but  that  difficulty  has  been  thought  to  have  been  removed  by  the 
removal  act  of  1875,  which  provides  that  an  injunction  granted 
before  removal  shall  continue  in  force  until  modified  or  dissolved 
by  the  Federal  court.28  It  was  directly  decided  in  1885,  that 
where  a  cause  has  been  removed  from  a  State  to  a  Federal  court, 
pending  an  application  to  punish  a  party  for  disobeying  an  injunc- 

23.  Hedges  v.  Yuba  County  Su-  26  Fed.  501;  Ex  parte  Bradley,  7 
perior  Court,  67  Cal.  405.  7  Pac.  767.  Wall.  364.  372,  19  L.  Ed.  214;  Penn 

24.  Poertner  v.  Russell,  33  Wis.  v.  Messinger,  1  Yeates,  2;  Passmore 
193.  Williamson's  Case,  26  Pa.  St.  9.  See 

25.  Carter  v.  Bartel,  110  Iowa,  Williams  Mower  Co.  v.  Raynor,  7 
211,  81  N.  W.  462.  so  holding  where  Biss.   245. 

an  injunction  restrained  a  firm  from  27.  McLeod  v-  Duncan,  5  McLean, 

the  illegal  sale  of  intoxicating  liquors.       342. 

26.  Kirk  v.  Milwaukee  M'fg  Co.,  28.  U.  S.  R.  S.,  §  646. 

435 


$278 


Violations  and  Punishment  of. 


tion  of  a  State  court,  the  Federal  court  has  no  jurisdiction  to  hear 
and  determine  the  application.29  Under  a  Code  provision  that 
"  disobedience  of  an  injunction  may  be  punished  a9  a  contempt  by 
the  court,  or  by  any  judge  who  might  have  granted  it  in  vacation," 
it  has  been  held  that  a  county  judge  has  no  power  to  commit  for 
contempt  one  guilty  of  violating  an  injunction  allowed  by  him  in 
an  action  in  the  District  Court,  as  the  contempt  in  such  a  case  is 
not  against  the  county  judge,  but  against  the  District  Court,  whose 
order  is  defied.30 


§  278.  Punishment  in  Federal  courts. — The  power  of  the 
Federal  courts  to  punish  for  contempt  of  their  authority  in  dis- 
obeying injunctions  issued  by  them,  is  recognized  and  declared  by 
statute.31  The  exercise  of  this  power  is  two-fold :  first,  the  proper 
punishment  of  the  offender  for  his  disrespect  to  the  court  or  its 
order,  and  second,  to  compel  his  performance  of  the  act  or  duty 


29.  Kirk  v.  Milwaukee  M'f'g  Co., 
26  Fed.  501.  per  Dyer.  J.:  "A  power 
so  extraordinary  should  be  clearly 
given  before  it  is  exercised.  In  the 
present  state  of  decision  I  regard  the 
proposition  as  indisputable,  that  this 
court  if  it  were  to  attempt  to  take 
jurisdiction  of  this  proceeding,  could 
not  administer  penalties  according  to 
the  State  statute.  It  would  have  to 
be  treated  as  a  purely  penal  proceed- 
ing. I  conceive  this  to  be  the  logic 
of  the  decision  of  the  Supreme  Court 
in  Ex  parte  Fisk  113  U.  S.  713,  5  S. 
Ct.  724,  28  L.  Ed.  1117.  .  .  . 
Congress  having  legislated  on  the 
subject  of  contempts  and  made 
a  prosecution  for  contempt  a 
purely  penal  proceeding,  with  no 
provision  for  pecuniary  indemnity  to 
the  party  injured,  this  court  (U.  S. 
Circuit  Court)  is  under  the  restraint 
of  the  federal  statute,  and  cannot  en- 
force the  State  statute." 

30.  Johnson    v.    Bouton,    35    Neb. 


898,  53  N.  W.  995.  See,  also  State  v. 
McKinnon,  8  Or.  487.  which  held  that 
a  judge  of  the  Circuit  Court,  in  vaca- 
tion, has  no  power  to  hear  and  deter- 
mine charges  of  contempt  for  dis- 
obeying orders  of  the  court,  but  in 
such  cases  the  court  has  exclusive 
jurisdiction.  In  Nieuwankamp  v.  Ul- 
lman,  47  Wis.  168,  an  injunction  had 
been  granted  by  a  Circuit  Court  com- 
missioner to  restrain  an  insolvent 
debtor  from  disposing  of  his  prop- 
erty; the  order  having  been  violated 
the  court  held  that  the  commissioner 
could  punish  for  the  violation,  and 
that  the  court  also  had  the  power. 
And  see  Haight  v.  Lucia.  36  Wis.  355. 
31.  U.  S.  Rev.  Stat,  §  725  where 
among  the  cases  enumerated  as  pun- 
ishable for  contempt,  are  "  disobedi- 
ence or  resistance  of  an  officer  of  the 
court,  or  by  any  party,  juror,  witness 
or  other  person  to  any  lawful  writ, 
process,  order,  rule,  decee  or  com- 
mand of  the  said  courts." 


436 


Violations  and  Punishment  of. 


§278 


required  of  him  by  the  court,  and  which  he  refuses  to  perform.32 
Where  defendant,  in  violating  an  injunction,  is  not  guilty  of  wilful 


32.  Ex  parte  Huidekoper,  55  Fed. 
709,  per  Curiam :  "  It  appears  that 
certain  personal  property  in  the 
hands  of  receivers  of  this  court  was 
distrained  for  an  excess  of  tax;  that 
the  receivers  had  actually  paid  all  of 
the  admitted  tax,  and  had  not  paid 
the  excess,  because  it  is  alleged  that 
it  is  not  authorized  by  law.  The  war- 
rants or  executions  were  issued  by 
the  county  treasurers  in  each  in- 
stance, and  were  executed  by  the  re- 
spective sheriffs.  Upon  petitions  filed 
in  this  court  by  the  receivers,  it  was 
alleged  that  an  amount  of  property 
in  each  instance  had  been  distrained 
greatly  exceeding  the  amount  of  tax 
demands,  and  that  in  many  instances 
property  in  the  care  of  the  receivers, 
belonging  to  other  parties,  had  been 
included.  At  the  hearing  of  the  peti- 
tions, rules  to  show  cause  were  issued 
to  each  county  treasurer  and  sheriff 
complained  of,  and  at  the  same  time 
a  restraining  order  was  issued,  for- 
bidding them  and  each  of  them  from 
disposing  of  or  interfering  with  the 
property  distrained.  These  orders 
were  all  personally  served  on  the  per- 
sons to  whom  they  were  directed.  No 
attention  to  or  obedience  of  any  of 
the  said  restraining  orders  was  paid 
by  any  one  of  the  sheriffs  served.  On 
the  contrary,  they  retained  possession 
of  the  property  in  defiance  of  the  or- 
ders and  still  retain  it.  In  their  re- 
turns to  the  rules  to  show  cause 
they  justify  their  act,  profess  no  de- 
sire to  submit  to  the  ruling  of  the 
court  and  accompany  this  with  a  for- 
mal disclaimer  of  any  contempt.  It 
must  be  borne  in  mind,  also,  that  the 
property  distrained  was  not  of  a  fugi- 
tive character,  and  that,  as  it  always 


remains  in  this  State,  and  is  easily 
reached,  there  never  could  arise  any 
difficulty  in  making  a  levy  when  such 
levy  was  adjudged  to  be  lawful.  In 
despite  of  this  fact,  and  of  the  re- 
straining order  of  this  court,  the 
property  was  detained.  It  was  said 
at  the  bar  that  the  sheriffs  acted 
under  the  orders  of  the  comptroller 
general  in  making  the  levy  under 
statute  of  1888  (20  St.  S.  C,  p.  54). 
If  this  be  so,  and  if,  after  making  the 
levy  and  having  been  served  with  the 
order  of  this  court,  the  sheriffs  had 
obeyed  it,  we  could  perhaps  have 
treated  this  as  a  technical  contempt, 
and  have  graduated  the  punishment 
accordingly.  But,  although  the 
comptroller  general  is  the  person 
charged  by  law  with  the  duty  of  di- 
recting sheriffs  in  collection  of  taxes, 
neither  he,  nor  anyone  else,  can  direct 
or  authorize  the  sheriffs,  in  tne  exe- 
cution of  the  precept,  to  violate  the 
rights  of  third  parties,  or  to  conduct 
themselves  illegally.  The  sheriff  is 
an  indep3ndent  officer,  holding  under 
a  tenure  created  by  the  constitution, 
with  a  recognized  right  in  this  same 
statute  to  differ  from  the  comptroller 
general,  and  to  have  such  difference 
settled  in  a  court  of  law.  Whenever 
he  acts,  he  acts  on  his  own  responsi- 
bility, and  cannot  shield  himself  by 
any  instructions  of  the  plaintiff  in 
execution.  We  can  deal  with  him 
only.  In  these  cases  we  are  of  the 
opinion  that  there  has  be?n  open  and 
flagrant — perhaps,  we  fear,  deter- 
mined— disregard  of  the  process  of 
this  court,  and  that  the  sheriffs  are 
justly  chargeable  with  high  contempt. 
They  cannot  escape  unpunished.  Were 
this  course  to  be  followed,  the  dig- 


437 


§279 


Violations  and  Punishment  of. 


contempt,  a  nominal  fine  and  costs  will  be  imposed.33  On  motion 
that  the  party  in  contempt  stand  committed  for  a  breach  of  the 
injunction,  the  moving  party  must  show  the  allowance  of  the  in- 
junction in  due  form,  its  service,  and  notice  to  defendant  of  the 
time  and  place  of  the  motion,34  and  must  state  in  the  proofs  on 
which  the  application  is  founded,  the  specific  acts  of  omission  or 
commission  which  constitute  the  alleged  contempt;  and  the  inter- 
rogatories which  defendant  may  be  required  to  answer  must  be 
limited  to  the  particular  offenses  so  alleged  and  charged,  not  on 
information  and  belief,  but  established  by  direct  evidence.35 


§  279.  In  England. — In  England  an  order  for  commitment  for 
violating  an  injunction  cannot  be  sustained  except  on  the  clearest 
evidence  of  an  actual  breach  ;36  and  not  for  every  trifling  technical 
breach  committed  in  the  ordinary  course  of  business,  which  has 
not  done  any  real  mischief  to  the  person  complaining.37  If  the 
person  enjoined  is  not  personally  at  fault  he  will  not  be  adjudged 
in  contempt  because   his   servants   or  agents   have   committed   a 


nity  of  the  court  would  be  impaired, 
and  its  usefulness  in  great  measure 
destroyed.  In  our  action  in  this 
case  we  will  follow  the  precedent 
of  the  Supreme  Court  in  Re 
Chiles,  22  Wall.  168,  22  L.  Ed. 
819.  M.  V.  Tyler,  sheriff  of  Aiken 
county,  having  be^n  served  with  two 
rules  to  show  cause  why  he  be  not 
attached  for  contempt  for  the  matters 
cet  forth  in  copy  of  petition  to  each 
rule  attached,  and  sufficient  cause 
having  not  been  shown,  and  it  fur- 
ther appearing  that  he  notwithstand- 
ing continues  to  hold  and  detain  said 
property.  It  is  ordered,  adjudged, 
and  decreed  that  he  is  in  contempt  of 
this  court,  and  of  its  orders  and  pro- 
cess. It  is  furtner  ordered  that  he 
do  pay  a  fine  of  $500,  and  that  the 
clerk  of  this  court  shall  enter  judg- 
ment thereon,  and  issue  execution 
therefor,  and  also  stand  committed  to 


the  custody  of  the  marshal  of  this 
court  until  he  has  paid  said  fine,  or 
purged  himself  of  his  contempt 
therein."  Note. — This  case  has  been 
affirmed  by  the  Supreme  Court,  so 
far  as  the  imprisonment  is  concerned. 
Ex  parte  Tyler,  149  U.  S.  164,  13  Sup. 
Ct.  Rep.  785,  37  L.  Ed.  689. 

33.  Morss  v.  Domestic  Sewing  Ma- 
chine Co.,  38  Fed.  482. 

34.  Worcester  v.  Truman,  1  Mc- 
Lean, 483. 

35.  Parkhurst  v.  Kinsman,  2 
Blatchf.  76. 

36.  Kerr,  Injunctions,  643;  Hard- 
ing v.  Tingey.  12  Weekly  Rep.  6S5; 
Dawson  v.  Paver,  5  Hare,  424.  An  in- 
tention to  violate  an  injunction  is  not 
punishable  unless  actually  carried 
into  effect.  Grand  Junction  Canal  Co. 
v.  Dimes.  18  L.  J.  Ch.  419. 

37.  Baxter  v.  Bower,  44  L.  J.  Ch. 
626. 


438 


Violations  and  Punishment  of.  §  279a 

breach,38  or  because  his  wife,  living  separate  from  him,  has 
violated  it.39  It  is  a  contempt  publicly  to  attribute  a  falsehood 
to  the  applicant  for  the  injunction,  or  his  witnesses,  after  their 
affidavits  have  been  filed.40  The  defendant  may  excuse  himself 
by  showing  that  the  injunction  has  expired.41  And  the  plaintiff 
may  estop  himself  from  punishing  defendant's  breach  by  acqui- 
escence therein,  and  by  delay  in  executing  the  warrant  of  commit- 
ment.43 


§  279a.  Payment  of  damages. — In  some  jurisdictions  one  who 
has  been  guilty  of  contempt  in  violating  an  injunction  may  be 
subjected  to  the  payment  of  damages  sustained  by  the  other 
party.43  So  it  is  determined  that  the  United  States  Circuit  Court 
has  power  to  direct  the  payment  of  a  part  or  all  of  the  fine  to  the 
complainant  in  an  application  for  contempt  as  a  compensation  for 
his  time  and  outlay  in  prosecuting  the  application.44  And  in  a 
case  in  South  Carolina  where,  after  an  order  enjoining  all  the 
creditors  of  a  testator  from  suing  the  executor,  some  of  the  cred- 
itors sued  him,  they  were  ordered  to  pay  not  only  their  own  costs 
at  law  but  the  costs  of  the  executor  also.45 


38.  Rantzen  v.  Rothschild,  14  A.  118.  The  court  said  that  thig 
Weekly  Rep.  96;  Ex  parte  Langley,  power  "has  often  been  recognized  in 
L.  R.  13  Ch.  D.  121.  the    Circuit    Courts     .     .     .     and    in 

39.  Hope  v.  Carnegie,  L.  R.  7  Eq.  practice  is  a  power  which  ought  to 
254.  be  exercised  when   the  expenses  and 

40.  Tichborne  v.  Tichborne,  L.  R.  trouble    to     which     the    complainant 

7  Eq.    55;    Littler   v.    Thompson,    2  has  been   subjected  justify  its  exer- 
Beav.   129.  cise."  Compare  Dowagiac  Mfg.  Co.  v. 

41.  Daw  v.  Eley,  L.  R.  3  Eq.  496.  Minnesota  Moline  Plow  Co.,  124  Fed. 

42.  St.    John's    College   v.    Carter,  736,  wherein  Judge  Lochren  said:  "I 

8  Jur.    1036;    Rodgers   v.    Nowill,    3  do  not  understand  that  the  office  of 
DeG..  M.  &  G.  619.  a  proceeding  for  contempt  ordinarily, 

43.  Levy  v.  New  Orleans  W.  Co.,  or  in  a  case  of  this  kind,  is  to  com- 
38  La.  Ann.  29;  Robins  v.  Frazier,  pensate  the  party  complaining  for 
5  Heisk.  (Tenn.)  100;  Kaehler  v.  any  injury  that  he  has  sustained  by 
Dobberpuhl.  60  Wis.  256.  But  see  reason  of  the  acts  of  the  defendant 
Kaehler  v.  Halp:n   59  Wis.  40.  which  constitute  the  contempt." 

44.  Cary  Mfg.  Co.  v.  Acme  Inflex-  45.  Thomson  v.  Palmer,  3  Rich, 
ible  Clasp  Co.,  108  Fed.  873,  48  C  C.  Eq.   (S.  C.)    139. 

439 


§  280  Violations  and  Punishment  of. 

§  280.  Indemnity  fine  for  contempt  in  New  York. — In  New 
York,  under  the  provisions  of  the  Revised  Statutes  of  1830,  whieh 
have  been  incorporated  into  the  Code  of  Procedure,  the  fine  im- 
posed upon  a  party  violating  an  injunction  must  be  sufficient  to 
indemnify  the  aggrieved  party,  and  it  must  be  collected  and  paid 
over  to  him  under  the  direction  of  the  court.46  And  the  fine  may 
be  enforced  by  commitment  of  the  offender  until  he  pays  it.47  The 
statute  referred  to  gives  the  court  no  discretion,  but  requires  the 
infliction  of  a  fine  sufficient  to  indemnify  the  complainant  for  the 
injury  sustained  by  the  breach  of  the  injunction,  and  to  satisfy 
his  costs  and  expenses.  And  the  defendant  cannot  be  discharged 
from  imprisonment,  without  the  complainant's  consent,  until  the 
fine  is  actually  paid.48  In  this  connection  it  is  decided  that  where 
a  motion  is  made  to  punish  several  defendants  for  a  civil  contempt 
in  wilfully  disobeying  an  injunction  order  directed  to  and  issued 
against  all  the  defendants  proceeded  against,  and  an  order 
adjudging  them  guilty  of  such  contempt  does  not  state  the  actual 
loss  or  injury  of  the  plaintiff,  nor  any  items  from  which  the 
amount  thereof  may  be  computed  or  inferred,  a  single  fine  may  be 
imposed  under  the  Code49  upon  all  of  the  defendants  sued  in  the 
proceeding,  for  which  each  defendant  is  severally  liable,  and  in 
default,  any  one  and  all  are  liable  to  imprisonment,  but  one  pay- 
ment is  a  satisfaction  as  to  all.60    And  even  when  the  plaintiif  has 

46.  Rev.  Stat.  538,  §§  21,  22;  Code  People    ex     rel.     Cauffman     v.     Van 

Civ.  Pro.  §  2284;  People  v.  Spalding.  Buren  (Sup.),  63  Hun.  635,  18  N.  Y. 

2  Paige,  326;   Simmons  v.  Simmons,  Supp.  734;  aff'd  136  N.  Y.  252    263 

4  N.  Y.  W.  Dig.  130.     Plaintiffs  at-  32  N.  E.  775. 

tached  gnods  which   had  been  levied  47.  People     ex     rel     Cauffman     v. 

on  under  an  execution,  and  procured  Van   Buren,  63   Hun,   635,   18   N.  Y. 

an    injunction     restraining    the    sale  Supp.  734,  aff'd  136  N.  Y.  252    32  N 

under  the  execution,  on  the  ground  E.  775;   Lansing  v.  Easton,  7  Paige, 

that  the  judgment  on  which  it  was  364;  People  v.  Compton,  1  Ducr,  512 

issued  was  void.    The  g  ods  in  ques-  affd  9  N.  Y.  263. 

tion  were  sufficient  to  pay  plaintiffs'  48.  Lansing  v.  Easton,  7  Paige  (N. 

claim.   Held,  that  a  sale  in  disobedience  Y.),364. 

to  the  injunction  would  be  punished  49.  N.  Y.  Code  Civ.  Proc,  §  2284, 

by  a  fine  to  the  amount  of  plaintiffs'  subd.  2. 

claim,  as  plaintiffs,  by  their  attach-  50.  Socialistic    Co-operative    Pub. 

ment  had  acquired  rights  which  were  Ass'n  v.  Kuhn,  164  N.  Y.  473,  58  N. 

injuriously    affected     by     such    sale.  E.  649. 

440 


Violations  and  Punishment  of.  §  280a 

suffered  no  loss,  a  fine  must  be  imposed  upon  the  offender  for  Lis 
breach  of  the  injunction,  not  exceeding  $250,  in  addition  to  com- 
plainant's costs  and  expenses.51  So  in  the  case  of  a  technical  con- 
tempt it  has  been  decided  that  the  party  violating  the  injunction 
may  be  fined  the  amount  of  damages  shown  to  have  been  sustained 
by  the  complainant,  together  with  costs.52 

§  280a.  Same  subject  continued. — Generally  it  is  a  reasonable 
punishment  to  require  the  party  in  contempt  to  pay  the  actual 
damages  sustained  by  the  plaintiff  from  the  violation,  with  the 
costs  of  the  contempt  proceedings.53  So  where  the  violation  of  an 
injunction  order  by  the  defendant  is  deliberate  and  intentional 
the  fine  imposed  may  properly  include  the  plaintiff's  provable 
damages  and  expenses  and  he  may  in  addition  thereto  be  im- 
prisoned until  he  manifests  a  willingness  to  comply  with  the 
order.54  And  where  a  defendant  has  collected  and  used  money  in 
violation  of  an  injunction  order  it  has  been  held  proper  in  New 
York  to  impose  a  fine  for  such  violation  equal  to  the  amount  of 
money  so  collected.55  And  where  a  defendant  in  a  suit  in  chan- 
cery who  had  rendered  himself  liable  to  a  criminal  contempt  for 
violating  an  injunction,  issued  upon  a  creditor's  bill,  was  after- 
wards discharged  under  the  bankrupt  act,  and  after  such  dis- 
charge was  prosecuted  by  attachment  for  the  contempt,  it  was  held 
that  the  discharge  was  not  a  defense  against  the  attachment  pro- 
ceeding and  that  a  fine  to  the  amount  of  the  complainant's  judg- 
ment and  costs  and  a  direction  that  the  same  be  paid  to  the 

51.  Code  Civ.  Pro..  §  2284;  Clark  citing  Socialistic  Co-operative  Pub. 
v.  Bininger..  75  N.  Y.  344.  Ass'n  v.  Kuhn,  164  N.  Y.  473,  58  N. 

52.  Mutual  Milk  &  Cream  Co.  v.  E.  649;  Moffat  v.  Herman,  116  N.  Y. 
Tie  jen,  73  App.  Div.  (N.  Y.)  532,  131,  22  N.  E.  287;  Clark  v.  Bininger, 
77  N.  Y.  Supp.  287,  c"t*ng  Power  v.  75  N.  Y.  344;  People  v.  Anthony,  7 
Village  of  Athens,  19  Bun  (N.  Y.),  App.  Div.  132,  aff'd  151  N.  Y.  620,  45 
165;  Moffatt  v.  Herman,  116  N.  Y.  N.  E.  1133;  Matter  of  Leggat.  162  N. 
131.  2  N.  E.  287;  Dejonge  v.  Bren-  Y.  437,  56  N.  E.  1009;  Brown  v. 
neman,  23  Hun  (N.  Y.),  332.  Mechanics  &  Traders'  Bank,  43  App. 

53.  Chapel  v.  Hull,  60  Mich.  167,  Div.  173.  59  N.  Y.  Supp.  354. 

26  N.  W.  874.  55.  Sheffield   v.   Cooper,    21    App. 

54.  Stolts  v.  Tuska.  82  App.  Div.       Div.  (N.  Y.)  519,  48  N.  Y.  Supp.  639. 
(N.   Y.)    81,    81    N.   Y.    Supp.    638, 

441 


§  281  Violations  and  Punishment  of. 

complainant  for  his  indemnity  was  not  improper.56  In  this  con- 
nection it  is  decided  that  where  it  is  sought  to  fine  a  person  the 
amount  of  damages  sustained  by  a  complainant,  as  a  result  of  the 
former's  violation  of  an  injunction,  it  is  necessary  that  there  should 
be  an  adjudication  upon  competent  proof,  not  only  of  the  facts 
unequivocally  stated  which  constituted  the  violation  of  the  in  junc- 
tional order  but  also  that  the  violation  was  such  as  "  was  calcu- 
lated to,  or  actually  did,  defeat,  impair,  impede  or  prejudice  the 
rights  or  remedies  "  of  the  complainant.57  And  it  is  said  that  in 
a  proceeding  to  determine  what  punishment  shall  be  imposed  for 
a  civil  contempt,  in  which  the  punishment  is  to  be  measured  by 
such  sum  as  will  compensate  the  injured  party  for  his  actual  loss 
the  inquiry  must  always  relate  to  the  condition  of  things  at  the 
time  when  the  penalty  is  to  be  imposed  and  that  where  a  fine  is 
imposed  and  reference  ordered  to  ascertain  the  damages  evidence 
is  properly  admissible  before  the  referee  to  show  that  the  proper 
measure  of  damages  by  reason  of  subsequent  events  is  less  than 
it  was  at  the  time  the  order  of  reference  was  made.68 

§  281.  Punishing  contempt  by  annulling  what  has  been  done. 

— If  a  person  enjoined  violate  the  injunction,  whatever  he  does  in 
committing  the  violation  may  be  annulled  or  destroyed,  so  far  as 
practicable,  as  expressly  provided  by  statute  in  Louisiana.59  Thus, 
a  sale  in  violation  of  an  injunction  will  be  annulled  so  far  as  to 
prevent  the  violator  from  deriving  any  benefit  therefrom.60  And 
an  execution  issued  in  violation  of  a  pending  injunction  is  void, 
and  will  not  support  a  title  made  under  it.61     And  where  an  in- 

56.  Macy  v.  Jordan,  2  Den.  (N.  trust-deed  has  been  enjoined,  its  sale 
Y.)  570.  under  execution,  issued  on  the  judg- 

57.  Mutual  Milk  &  Cream  Co.  v.  ment  of  foreclosure,  while  the  injunc- 
Tietjen.  73  App.  Div.  (N.  Y.)  532,"  77  tion  is  still  in  force,  is  a  contempt 
N.  Y.  Supp.  287.  of  court,  and  passes  no  title.     Ward 

58.  Ray  v.  New  York  Bay  Exten-  v.  Billups,  76  Tex.  466,  13  S.  W.  308. 
sion  Co.,  48  App.  Div.  (N.  Y.)  502,  61.  Seligson  v.  Collins,  64  Tex. 
62  N.  Y.  Supp.  924.  315;  Morris  v.  Bradford,  19  Ga.  527; 

59.  La.  Code  of  Practice,  Art.  308.  Farnsworth     v.      Fowler,      1      Swan 

60.  Where   the  enforcement  of  an  (Tenn.),  1. 
order  of    sale    on    foreclosure    of  a 

442 


Violations  and  Punishment  of.  §  281a 

junction  was  issued  against  an  execution,  after  the  sheriff  had 
made  the  first  proclamation  thereunder,  and  the  plaintiff's  solicitor 
refused  to  order  the  sheriff  not  to  proceed  further,  it  was  held  that 
plaintiff  was  in  contempt,  and  that  he  should  not  have  the  benefit 
of  any  subsequent  proclamation.62     Where  a  party  who  has  insti- 
tuted an  action  in  a  State  court,  and  is  there  enjoined  from  pro- 
ceeding to  judgment  until  certain  assets  are  marketed,  he  is  in 
contempt  if  he  brings  an  action  in  a  Federal  court  in  order  to  evade 
the  injunction,  though  the  latter  court  had  concurrent  jurisdiction 
of  the  matter.     The  State  court  cannot,  in  such  a  case,  order  the 
action  dismissed  in  the  Federal  court.     It  can  only  punish  those 
who  violate  its  injunction,  leaving  it  to  the  other  litigant  to  move 
in  the  Federal  court  for  a  stay  of  the  proceedings  there  which  are 
in  violation  of  the  injunction,  until  final  disposition  of  the  con- 
troversy in  the  State  court.63     A  court  of  law  cannot  take  cog- 
nizance of  a  breach  of  injunction,  nor  allow  it  to  operate  as  a  for- 
feiture of  legal  rights  in  another  suit,  when  it  is  not  shown  that 
the  injunction  has  been  perpetuated  by  a  final  decree.64 

§  281a.  Compelling  restoration  of  status. — Where  one  who  has 
notice  that  an  injunction  has  been  granted  against  him,  though  he 
has  not  been  formally  served  with  the  writ,  does  an  act  which  is  a 
violation  of  the  injunction,  and  thus  changes  the  status  of  the  prop- 
erty involved  in  the  case,  the  judge  may  at  an  interlocutory  hear- 
ing, or  upon  an  application  for  an  attachment  for  contempt,  re- 
quire the  offender  to  restore  the  status  as  it  existed  at  the  time  he 
first  received  notice  that  the  injunction  had  been  granted.65  So 
where  one  has  been  guilty  of  contempt  of  court  in  removing  fix- 
tures in  violation  of  an  injunction  he  may  be  compelled  to  restore 
them,  and  if  it  appears  that  the  fixtures  have  been  injured,  the 
party  guilty  of  the  contempt  must  in  addition  to  such  restoration 
meet  any  expenditure  of  money  required  to  remedy  the  wrong 


62.  Woodley  v.  Boddington,  9  Si-  64.  Callan  v.  McDaniel,  72  Ala.  96. 
mons,  214.  65.  Murphey   v.   Harker,    115   Ga. 

63.  Hines  v.  Rawson,  40  Ga.  356.       77,  41  S.  E.  585.    Per  Cobb,  J. 

443 


§  282  Violations  and  Punishment  of. 

done.86  And  where  structures  have  been  erected  by  trespassers  in 
violation  of  an  injunction,  the  party  erecting  them  may  be  com- 
pelled to  remove  the  same.67  And  where  the  defendant  had  en- 
deavored to  anticipate  the  action  of  the  court  by  hurrying  on  the 
building  to  be  enjoined,  it  was  held  that  what  he  had  done  should 
be  at  once  pulled  down,  without  regard  to  the  ultimate  result  of  the 
action.68  And  where  a  railroad  company  lays  a  track  in  disregard 
of  an  injunction,  it  may  be  compelled  to  purge  its  contempt  by 
removing  the  obnoxious  track.69  And  when,  on  an  application  for 
an  injunction,  the  chancellor  grants  a  temporary  restraining  order 
until  the  hearing  of  the  application,  and  the  defendant  violates  it 
and  takes  possession  of  land  in  defiance  of  it,  the  chancellor  may 
direct  the  sheriff  to  restore  the  parties  to  their  status  at  the  time 
the  bill  was  filed,  even  though  he  may  refuse  the  injunction.70 


§  282.  Party  in  contempt  not  entitled  to  jury. — The  Kansas 
rule  is  that  while  a  proceeding  to  punish  for  contempt  of  an 
injunction  is  of  a  criminal  nature,  yet  it  is  really  incident  to  the 
injunction  action,  and  therefore  the  offender  is  no  more  entitled 
to  a  jury  in  trying  the  charge  for  contempt  than  he  was  in  the 
original  action;  that  the  constitutional  guaranty  of  trial  by  jury 
does  not  extend  beyond  the  cases  where  such  right  exists  at  com- 
mon law,  and  that  the  right  to  punish  for  contempt,  without  the 
intervention  of  a  jury,  is  a  well  established  rule  of  the  common 


66.  Ashby  v.  Ashby,  62  N.  J.  Eq.  real  v.  Great  Northern  R.  Co.,  4  De- 
618,  50  Atl.  473.  Gex  &   Sm.   75,  a  sequestration  was 

67.  Murdock's  Case,  2  Bland's  Ch.  ordered  to  issue  for  the  contempt,  and 
(Md.)  461,  20  Am.  Dec.  381.  was  only  stayed  on  appeal,  upon  the 

68.  Daniel  v.  Ferguson    (1891),  2  railroad  company  paying  all  the  costs 
Ch.  27.  and  undertaking  to  construct  a  road 

69.  Elizabethtown,  L.  &   B.  S.  R.  in  conformity  with  the  Railway  Con- 
Co.  v.  Ashland  C.  St.  Ry.  Co.,  94  Ky.  solidation  Act,  and  in  the  meantime 
478    22   S.  W.   855,  where   the  com-  to  provide  a  free  passage  at  all  times, 
pany  was  allowed  15  days  to  remove  70.  Byne  v.  Byne,  54  Ga.  257. 
the  offending  track.  In  Attorney  Gen- 


444 


Violations  and  Punishment  of. 


283 


law.  And  this,  doubtless,  is  the  general  rule.71  And  the  same 
rule  prevails  in  Iowa,  where  it  is  held  that  in  punishing  the  viola- 
tion as  a  contempt,  the  court  of  equity  does  not  punish  it  as  a 
crime;  if  it  shall  also  be  punished  as  a  crime,  then  the  offender 
will  be  entitled  to  a  jury.72 

§  283.  Violation  as  contempt  pending  appeal. — As  an  appeal 
from  a  decree  granting  an  injunction  does  not  disturb  its  operative 
effect,  the  general  rule  is  that  it  may  be  violated  pending  the  appeal 
as  well  as  before.73    Under  a  Code  provision  defining  a  supersedeas 


71.  State  ex  rel  Curtis  v.  Durein, 
46  Kan.  695,  27  Pac.  148,  where  the 
court  cites  and  relies  upon  Kimball  v. 
Connor,  3  Kan.  414;  State  v.  Cutler, 
13  Kan.  131;  Burrows,  In  re,  33  Kan. 
675,  7  Pac.  148;  McDonnell  v.  Hen- 
derson. 74  Iowa,  619.  38  N.  W.  512; 
State  v.  Becht,  23  Minn.  411;  State 
v.  Doty,  32  N.  J.  L.  403;  State  v. 
Matthews,  37  N.  H.  451;  Gandy  v. 
State,  13  Neb.  445;  Arnold  v.  Com- 
monwealth, 80  Ky.  300;  King  v.  Rail- 
way Co..  7  Biss.  529;  Neel  v.  State, 
9  Aik.  259;  Crow  v.  State,  24  Tex. 
12;  Hart  v.  Robinett,  5  Mo.  11;  Eik- 
enbery  v.  Edwards,  67  Iowa,  619,  25 
N.  W.  832.  In  State  v.  Durein.  46 
Kan.  695,  27  Pac.  148.  it  appeared 
that  on  April  1,  1891,  the  county  at- 
torney filed  an  affidavit  with  ;he  clerk 
of  the  District  Court,  charging  that 
Durein  had  violated  the  perpetual  in- 
junction which  had  been  issued,  and 
thereupon  the  court  issued  an  a  tach- 
ment  to  bring  him  before  the  court 
and  show  cause  why  he  should  not 
be  punished  for  the  alleged  contempt. 
On  April  13.  1891,  Durein  appeared 
and  a  hearing  was  had  upon  the 
charge,  and  it  was  found  that  Durein 
had  willfully  used  and  permitted 
others  to  use  his  premises  for  the 
sale  of  intoxicating  liquors,  in  viola- 
tion of  the  decree,  and  he  was  ad- 
judged guilty  of  contempt,  and  the 
penalty  imposed  was  that  he  should 


be  confined  in  the  county  jail  40  days, 
pay  a  fine  of  $500,  and  that  a  fee  of 
$100  be  taxed  for  the  county  attor- 
ney, as  part  of  the  costs,  and  that  Du- 
rein should  stand  committed  until  the 
fine  and  costs  were  paid.  On  appeal, 
this  sentence  was  affirmed,  except 
that  the  fee  of  $100  for  the  attorney 
was  stricken  out. 

72.  Manderscheid  v.  District 
Court,  Plymouth  Co.,  69  Iowa,  240, 
28  N.  W.  551. 

73.  United  States. — Knox  County 
v.  Harshman,  132  U.  S.  14,  10  S.  Ct. 
8,  33  L.  Ed.  249. 

California. — Merced  Min.  Co.  v. 
Fremont,  7  Cal.  130. 

Kentucky. — Smith  v.  Western  Un. 
Tel.  Co.,  83  Ky.  269. 

Louisiana. — State  v.  Houston,  37 
La.  Ann.  852. 

Missouri. — State  v.  Dillon,  8  S.  W. 
781. 

New  York. — Howe  v.  Searing,  19 
N.  Y.  Super.  Ct.  684;  State  v.  Car- 
Ian,  4  N.  Y.  Super  Ct.  738. 

South  Carolina. — Klinck  v.  Black, 
14  S.  C.  241. 

Violation  during  appeal. — Vio- 
lation of  an  injunction  during  an  ap- 
peal therefrom  may  be  punished  as 
a  contempt  by  the  court  to  which  the 
appeal  is  taken.  Mermez  v.  Grimes 
Candy  Co.  (Ohio,  1907),  83  N.  E. 
82. 


445 


§  283  Violations  and  Punishment  of. 

as  a  written  order  commanding  the  appellee  and  all  others  to  stay 
proceedings  on  the  judgment  or  order,  the  entire  force  of  a  judg- 
ment dissolving  an  injunction  is  rendered  nugatory  for  the  time 
by  the  execution  and  service  of  the  supersedeas,  the  injunction 
is  left  where  it  was  before  the  suspended  judgment  was  rendered, 
and  the  appellee  is  guilty  of  contempt  if  he  violates  it.74  And 
where  an  injunction  is  made  perpetual  the  party  enjoined  is  guilty 
of  contempt  if  he  violates  it,  though  he  has  taken  an  appeal,  and 
executed  a  supersedeas  bond.75  A  perpetual  injunction  is  not 
suspended  by  reason  of  an  appeal  from  the  judgment  granting  it, 
and  the  court  in  which  the  judgment  was  rendered  may  punish  as 
a  contempt  a  disobedience  of  the  injunction  in  such  a  case.76  In 
Louisiana  it  is  decided  that  during  the  pendency  of  a  suspensive 
appeal  from  a  judgment  dissolving  an  injunction,  the  injunction 
operates  as  if  never  dissolved  and  that  it  is  not  the  duty  of  a 
judge  to  proceed  with  the  execution  of  a  writ  thus  enjoined.77 
Under  the  California  Code  of  Procedure  providing  that  the  per- 
fecting of  an  appeal  (with  certain  exceptions  not  covering  an 
appeal  from  an  injunction)  stays  proceedings  in  the  court  below, 
an  appeal  from  an  order  granting  an  injunction  stays  proceedings 

74.   Elizabethtown  L.   &,  B.   S.   R.  One    who    has    been    enjoined 

Co.  v.  Ashland  &  C.  St.  Ry.  Co.,  94  from    building    a    house    on    an 

Ky.  478,  22  S.  W.  855.  alley,     and    ordered    to     remove    it, 

Where,  after  the  •  dissolution  will  not,  pending  appeal,  be  held  to 
of  an  injunction,  a  supersedeas  answer  for  contempt  in  putting  addi- 
bond  is  given  by  plaintiff  and  tional  stories  thereon,  as  this  adds 
the  order  of  supersedeas  is  served  nothing  to  the  obstruction,  and,  in 
on  defendant,  the  injunction  is  case  of  affirmance,  the  removal  of  the 
in  full  force,  and  a  violation  of  it  whole  building  may  be  required.  Ban- 
renders  defendant  guilty  of  contempt.  non  v.  Rohmeiser,  10  Ky.  Law  Rep. 
Smith  v.  Western  Union  Tel.  Co.,  83  395,  9  S.  W.  293. 
Ky.  269;  Yocum  v.  Moore,  4  Bibb.  75.  Smith  v.  W.  Un.  Tel.  Co.,  83 
(Ky.)  221.  Ky.  269,  273. 

An    appeal,    with    supersedeas  76.   Heinlen  v.  Cross,  63  Cal.  44; 

does  not  annul   an  order  of   injunc-  Kentucky    &    Indiana    Bridge    Co.   v. 

tion;     and     a     party    who     disobeys  Krieger,  91   Ky.  625,   16   S.  W.  824; 

the  order  by  an  act  done   after  the  State   v.   Dillon,   96  Mo.   56;    Klinck 

appeal    may    be    punished    for    con-  v.  Black,  14  S.  C.  241. 

tempt.     Central  Union  Telephone  Co.  77.  State  v.  Judge  of  Twelfth  Dis- 

v.    County    of    Tippecanoe,    110    Ind.  trict  Court,  38  La.  Ann.  31. 
203,  10  N.  E.  922. 

446 


Violations  and  Punishment  of.  §  283a 

on  all  parts  of  the  order  commanding  some  act  to  be  done,  and  the 
court  has  no  power,  pending  appeal,  to  punish  for  the  omission 
to  comply  with  such  order.78  In  Indiana  it  is  decided  that  the 
section  of  the  Code  authorizing  appeal  from  interlocutory  orders, 
which  requires  an  appeal  bond  to  be  filed  when  the  appeal  is  taken 
does  not  require  any  additional  bond  in  order  to  suspend  the  pro- 
ceedings for  thirty  days ;  but  an  appeal  from  an  order  of  injunc- 
tion does  not  allow  a  party  to  do  an  act  which  by  the  injunction 
he  is  forbidden  to  do.79  But  while  a  supersedeas  perfected  on 
appeal  from  an  order  dissolving  an  injunction  has  the  effect  to 
reinstate  it,  it  does  not  retroact  so  as  to  deprive  strangers  to  the 
litigation  of  intervening  rights  bona  fide  acquired.80  A  suspensive 
appeal  from  an  order  dissolving  an  injunction  is  held  not  to  divest 
the  court  issuing  the  injunction  of  jurisdiction  so  far  as  to  prevent 
its  punishing  a  disregard  of  the  injunction  as  a  contempt.81  In  a 
proceeding  for  the  violation  of  an  injunction  pending  an  appeal 
the  merits  of  the  case  cannot  be  considered.82 

§  283a.  Same  subject  continued. — When  an  execution  on  a 
judgment  at  law  has  been  enjoined,  and  the  injunction,  though 
dissolved  by  the  chancellor,  has  been  restored  pending  an  appeal 
from  his  decree,  the  issue  of  another  execution  before  the  appeal 
has  been  determined  is  a  violation  of  the  injunction  and  punish- 
able as  a  contempt  of  the  court.83  In  a  case  in  Iowa  defendant  was 
enjoined  from  making  beer,  and  during  the  pendency  of  an  appeal 
he  continued  to  do  so  under  the  belief  that  such  appeal  stayed  all 
proceedings  against  him.  Suit  was  then  begun  to  punish  him 
as  for  a  contempt,  and  the  trial  court  discharged  him,  from  which 
decision  an  appeal  was  taken,  and  the  judgment  was  reversed. 
During  the  pendency  of  this  proceeding  and  appeal  he  still  con- 
tinued to  brew  beer,  and  a  second  proceeding  was  begun  to  punish 

78.  Dewey  v.   Superior   Court,   81  852.     Compare  State  v.  Harness,  42 
Cal.  64,  22  Pac.  333.  W.  Va.  414,  26  S.  E.  174. 

79.  State  v.  Chase,  41  Ind.  356.  82.     Kentucky     Heating     Co.  v. 

80.  Smith    v.    Whitfield,   38   Fla.  Louisville  Gas  Co.,   109  Ky.  428,  59 
211,  20  So.  1012.  S.  W.  490. 

81.  State  v.  Houston,  37  La.  Ann.  83.  Balkum  v.  Harper's  Adm'r,  50 

Ala.  372. 

447 


§  284  Violations  and  Punishment  of. 

him  therefor  as  for  a  contempt.  It  was  adjudged  that  he  was 
guilty  of  contempt,  though  he  acted  in  good  faith  and  on  the 
advice  of  counsel.84 


§  284.  Appeals   from   orders   in   contempt   proceedings. —  It 

would  seem  that  an  order  of  commitment  for  violation  of  an  in- 
junction made  by  the  United  States  courts  is  not  subject  to  appeal 
to  the  Supreme  Court,  unless  the  appellate  jurisdiction  of  that 
court  has  been  enlarged  by  the  Judiciary  Act  of  March  3,  1891  ;86 
and  in  such  a  case  the  writ  of  habeas  corpus  is  not  to  be  used  to 
perform  the  office  of  a  writ  of  error  or  appeal  in  favor  of  one  who 
has  been  imprisoned  under  the  order  of  commitment,  unless  the 
court  making  the  order  was  without  jurisdiction  of  the  person  or 
of  the  subject  matter.86  In  Wisconsin  an  order  adjudging  a  de- 
fendant guilty  of  criminal  contempt  in  wilfully  disregarding  an 
injunction  is  not  appealable,87  being  considered  an  order  in  a 
criminal  proceeding  though  made  in  a  civil  action.88  As  late  as 
1864  the  contrary  rule  prevailed  in  Wisconsin;89  and  that  earlier 
rule  was  in  harmony  with  the  New  York  practice,90  under  which 
the  defendant  could  appeal  from  the  final  determination  that  he 
was  in  contempt,  but  not  from  the  initiatory  order  which  brought 
him  info  court  to  answer  for  the  contempt.91  But  except  where 
discretion  has  been  grossly  abused  by  the  court  in  rendering  judg- 
ment on  the  hearing  of  contempt  proceeding  the  judgment  will  not 

84.  Lindsay  v.  Hatch,  82  Iowa,  413;  In  re  Fenilon,  37  Wis.  231.  In 
332,  52  N.  W.  226;  State  v.  Bowman,  In  re  Murphey,  above  cited,  t'ie  court 
79  Iowa,  567,  44  N.  W.  813.  refers  to   and   distinguishes  Ballston 

85.  Ex  parte  Tyler,  149  U.  S.  Spa  Bank  v.  Marine  Bank,  18  Wis. 
164,  13  S.  Ct.  Rep.  785,  789,  37  L.  490;  Witter  v.  Lyon,  34  Wis.  564, 
Ed.   6S9.  as   not  in   point,   though   they   would 

86.  Nielsen,  Petitioner,  131   U.   S.  seem  to  have  been  in  point  but  for 
176;    9    S.    Ct.    672,   33    L.    Ed.    118.  the  contrary  opinion  of  the  court. 
Ex  parte  Terry.  128  U.  S.  289;  9  S.  89.  Shannon  v.  Wisconsin,  18  Wis. 
Ct.    77,    32    L.    Ed.    405;    Ex   parte  604. 

Parks,  93  U.  S.  18,  23  L.  Ed.  787.  90.  People  v.  Sturtevant,  9  N.  Y. 

87.  Town  of  Williamstown  v.  263,  59  Am.  Dec.  536;  People  v. 
Darge,  71  Wis.  643,  38  N.  W.  187.  Compton,  1  Duer,  512. 

88.  In  re  Murphey,  39  Wis.  286;  91.  McCredie  v.  Senior,  4  Paige, 
and    see    State   v.    Brophy,   38   Wis.  378. 

448 


Violations  and  Punishment  of.  §  284a 

be  disturbed.92  In  England  an  order  declaring  that  defendant  has 
committed  a  breach  of  the  injunction,  but  giving  no  directions 
except  that  defendant  should  pay  the  costs  of  the  application,  may 
be  appealed  from,  and  is  not  within  the  rule  against  appeals  for 

costs.93 

§  284a.  Judgment;  recital  of  facts  in. — Only  when  a  contempt 
is  committed  in  the  immediate  view  and  presence  of  the  court  or 
judge  in  chambers,  and  where  the  punishment  is  summarily  in- 
flicted, is  it  necessary  for  the  judgment  to  recite  the  facts  consti- 
tuting the  contempt.  In  cases  of  constructive  contempt  where  an 
affidavit  is  presented  setting  forth  the  facts  constituting  the  con- 
tempt, it  is  not  necessary  that  the  judgment  should  recite  the 
facts.94 

92.  Warner  v.  Martin,  124  Ga.  387,  Co.,  L.  R.  29  Ch.  D.  60. 

62  S.  E.  446.  94.  Shore  v.  People,  26  Colo.  616, 

9a.  Witt  v.  Corcoran,  L.  R.  2  Ch.  69  Pac  49. 
Div.   69;    Stevens  v.  Metropolitan  R, 


449 
29 


Dissolution. 


CHAPTER  IX. 

Dissolution. 

Section  285.  General  rule. 

286.  When  injunction  will  be  retained. 

287.  Same  subject. 

288.  Dissolution  where  the  sole  relief  is  injunctive. 

289.  Dissolution  where  court  has  been  imposed  on. 

290.  Court's  discretion  as  to  dissolution — Limit  of. 

291.  Discretion  further  considered   and   illustrated. 

291a.  Dissolution — Where  party  entitled  to  another  injunction. 

292.  Amending  defects  on  hearing  motion  to  dissolve. 

293.  Dissolution  for  irregularity — Alabama  rule. 
293a.  Fatal  defects  or  irregularities. 

293b.  Vagueness  as  ground  for  dissolution. 

294.  Dissolution   where  no  bond   is  given — Defective  or    insufficient 

bond. 

295.  Dissolution  on  defendant's  bond. 

296.  Same  subject — In  Louisiana. 

297.  Dissolution  for  laches. 

298.  Dissolution  where  subpoena  not  served. 

299.  Motion  to  dissolve  before  answer. 

300.  Same  subject. 

301.  Rebuttal  of  answer  on  motion  to  dissolve. 

302.  Affidavits  on  motion  to  dissolve. 

303.  Dissolution  on  papers  of  original  application. 

304.  Answer  as  equivalent  only  to  an  affidavit — Counter   affidavits, 

305.  Dissolution  on  denials  of  answer. 

306.  Dissolution  on  defendant's  denial  of  equities  of  bill. 
306a.  Same  subject  continued. 

307.  Same  subject — Discretion  of  court. 

308.  Same  subject. 

309.  Answers  not  responsive. 

310.  Same  subject — Exceptions. 

311.  Dissolving  an  answer  after  exceptions  to  it. 

312.  Answers  not  denying  admit — Evasive  answers. 

313.  Answers  admitting  and  then  avoiding  by  new  defense. 

314.  Qualified  answers — On  information  and  belief. 

315.  Dissolution  on  answer. 

316.  Dissolution  on  answer  though  bill  waive  oath. 

317.  Evidence  admissible  on  motion  to  dissolve. 

318.  Dissolution  of  injunction  on  bill  of  discovery. 

319.  Dissolving  injunction  on  ground  of  adequate  legal  remedy. 

450 


Dissolution.  %  285 

Section  320.  Motion  to  dissolve  for  want  of  jurisdiction. 

321.  Dismissing  bill  on  dissolution  of  injunction. 

322.  Same  subject — In  Texas. 

323.  Dissolution  where  several  defendants. 

324.  Same  subject — Qualifications  and  exceptions. 

325.  Same  subject. 

326.  Same  subject. 

326a.  Where  additional  parties  are  brought  in. 

327.  Dissolution  of  common  and  special  injunctions. 

328.  Where  enforcement  of  judgment  stayed. 

329.  Same  subject. 

330.  Dissolution  by  implication — By  sustaining  demurrer. 
330a.  Same  subject — Injunction  in  force  until  a  certain  time. 
330b.  Same  subject — Dismissal  of  bill — Effect  of  decree. 
330c.  Same  subject  continued. 

331.  Dissolution  of  injunctions  affecting  realty. 

332.  Dissolution  of  injunction  granted  on  charges  of  fraud. 

333.  Dissolution  on  removal  of  cause  to  Federal  court. 

334.  Dissolution  not  affected  by  mere  appeal. 

335.  Notice  of  motion  to  dissolve — General  rule. 

336.  Same  subject. 

337.  Who  may  apply  for  dissolution. 

337a.  Same  subject — Where  defendant  in  contempt. 
337b.  Same  subject  continued. 

338.  Dissolution  by  whom  granted. 

339.  Dissolution  at  chambers — In  vacation — Notice. 

340.  Abatement  of  injunction  on  plaintiff's  death. 

341.  Abatement  by  death  of  defendant. 
341a.  Continuance  of  motion  to  dissolve. 

342.  Second  motion  to  dissolve. 

343.  Restitution  by  plaintiff  on  dissolution. 

344.  Reinstatement  on  dissolution. 

Section  285.  General  rule. — It  is  a  general  rule  that  sufficient 
ground  for  dissolving  a  temporary  injunction  exists  where  there 
is  a  want  of  equity  in  complainant's  bill.1     And  an  injunction 

1.      United     States. — Kidwell     v.  327;    Cabriness  v.  Crawford,  21   Ga. 

Masterson,    Fed.    Cas.    No.    7758,    3  312. 

Cranch  C.  C.  52.  Illinois. — Edwards   v.    Haeger,    180 

Alabama. — Morrison  v.  Coleman,  87  111.  99,  54  N.  E.  176;   Fahs  v.  Rob- 
Ala.  655,  6  So.  374,  5  L.  R.  A.  384;  erts,  54  111.  192. 

Bishop  v.   Wood,   59   Ala.  253.      See  Indiana. — Sutherland    v.    Logro    & 

also  Louisville  &  N.  R.  Co.  v.  Besse-  M.  P.  R.  Co.,  19  Ind.  192. 

mer,  108  Ala.  238,  18  So.  880.  Kansas.— Henderson      v.       Marcel, 

Georgia.— Miller  v.  Maddox,  21  Ga.  1  Kan.  137. 

451 


§  285  Dissolution. 

should  also  be  dissolved  if  the  court,  on  all  the  evidence  before  it, 
would  not  have  granted  it  in  the  first  instance.2  And  if  there  is 
any  doubt  whether  or  not  the  plaintiff  is  entitled  to  the  injunction, 
not  he,  but  the  defendant,  should  have  the  benefit  of  it.3  But  in 
solving  the  doubt  the  court  of  original  jurisdiction  has  a  large 
discretion  with  which  an  appellate  court  is  reluctant  to  interfere. 
Thus  where  the  complaint  states  facts  sufficient  to  authorize  a 
temporary  injunction,  and  the  answer  raises  serious  issues,  the 
determination  of  which  is  doubtful,  it  is  not  error  to  continue  the 
injunction  till  the  hearing  upon  the  merits,  especially  when  it 
appears  that  the  subject  matter  of  the  action  will  remain  unim- 
paired.4 Ordinarily  if  the  defendant  makes  a  case  for  dissolution, 
it  should  not  be  denied  merely  upon  the  ground  of  expediency.5 
But  if  the  action  has  been  discontinued  and  the  costs  paid  by 
plaintiff,  the  court  will  not  hear  a  motion  to  dissolve  an  injunction 
which  has  already  thereby  ceased  to  operate,  for  the  mere  purpose 
of  deciding  whether  plaintiff  had  a  right  to  it.6  And  if  an  in- 
junction is  withdrawn  the  defendant  may  enter  an  order  dissolving 
it,  as  of  course,  upon  the  stipulation  vacating  it.7  Though  the 
omission  of  the  prayer  for  injunction  in  the  prayer  for  process 
is  a  good  ground  for  refusing  an  injunction,  it  is  not  a  good  ground 
for  dissolving  the  injunction.8 

Michigan. — Cooper    v.    Alden,    Har.  67.      A    preliminary    injunction   will 

Ch.  72.  not  stand  when  either  the  complain- 

Texas. — O'Neal     v.      Wills      Point  ant's  right  is  in  doubt  or  the  injury 

Bank,  64  Tex.  644.  which  may  result  from  the  invasion 

West    Virginia. — Morehead    v.    De  of  that  right  is  not  irreparable,  and 

Ford,  6  W.  Va.  316.  still  more  where  a  court  of  law  has 

2.  Moser  v.  Polhamus,  4  Abb.  Pr.  decided  against  the  plaintiff's  right. 
N.  S.  442;  Cary  v.  Domestic  Spring  Hagerty  v.  Lee,  45  N.  J.  Eq.  1,  255, 
Bed  Co.,  26  Fed.  38.     An  injunction  17  Atl.  826. 

will  be  dissolved  upon  the  bill  itself  4.  Whittaker  v.  Hill,  96  N.  C.  2, 

where  material  allegations  in  the  bill  1  S.  E.  639. 

are  stated  to  be  on  information  and  5.  Taylor  v.  Hutton,  43  Barb.  195. 

belief,    without    affidavit    to     sustain  6.  Hope  v.  Acker,  7  Abb.  Pr.  308. 

them.         Williams       v.       Lockwood,  7.  Shearman    v.    New    York,    etc., 

Clarke's  Ch.  172;   Waddell  v.  Bruen,  Mills,  11  How.  Pr.    (N.  Y.)   269. 

4  Edw.  Ch.  671.  8.  Taylor    v.    Snyder,    Walk.    Ch. 

3.  Secor  v.  Weed,  7  Robt.   (N.  Y.)  (Mich.)    490. 

452 


Dissolutions. 


286 


§  286.  When  injunction  will  be  retained. — The  court  in  the 
exercise  of  its  discretion  may  decline  to  dissolve  an  injunction 
and  may  retain  it  until  final  hearing,  where  the  complainant  has 
made  a  showing  of  equities  which  seems  to  require  further  inves- 
tigation,9 though  his  case  is  by  no  means  wholly  clear,  if  there  is 
a  fair  probability  that  he  is  entitled  to  relief;10  and  where  the 
answer  denying  the  equity  of  the  bill  is  not  wholly  ingenuous 
and  explicit;11  and  where  the  dissolution  would  operate  to  deprive 
the  plaintiff,  in  case  he  should  finally  prevail,  of  the  benefits  which 
he  seeks  to  obtain  by  the  suit,12  as  where  it  would  enable  defendant  to 
place  the  property  in  controversy  beyond  the  control  of  the  court,  and 
would  be  equivalent  to  a  denial  of  all  relief  to  complainant  ;13  where 
irreparable  injury  would  result  to  the  plaintiff  by  the  dissolution14 
or  no  material  injury  would  result  to  the  defendant  by  the  continu- 
ance of  the  injunction  ;15  and  when  the  injunction  bill  prays  relief 
against  a  suit  at  law  as  well  as  discovery,  and  in  regard  to  a  matter 
which  peculiarly  belongs  to  equity  jurisdiction;16  and  where  the 


9.  McKibbin  v.  Brown,  14  N.  J. 
Eq.  14;  Mulford  v.  Bowen,  9  N.  J. 
Eq.  797;  Snyder  v.  Seeman,  41  N. 
J.  Eq.  405,  5  Atl.  637.  See  Decatur 
v.  Rogers,  75  111.  App.  658. 

10.  Huffman  v.  Hummer,  17  N.  J. 
Eq.  263;  Camden,  etc.,  R.  Co.  v.  At- 
lantic City,  etc.,  Co.,  26  N.  J.  Eq.  69. 

11.  Fleischman  v.  Young,  9  N.  J. 
Eq.  620;  Richardson  v.  Peacock,  26 
N.  J.  Eq.  40;  Kuhl  v.  Martin,  26  N. 
J.  Eq.  60. 

12.  Mississippi. — Board  of  Super- 
visors of  Madison  County  v.  Paxton, 
56  Miss.  679. 

New  Jersey. — Hoagland  v.  Titus, 
14  N.  J.  Eq.  81;  Fleischman  v. 
Young,  9  N.  J.  Eq.  620. 

New  York. — Hart  v.  Ogdensburg  & 
L.  C.  R.  Co.,  66  Hun,  628,  20  N.  Y. 
Supp.  918. 

North  Carolina. — Heilig  v.  Stokes, 
63  N.  C.  612. 

Ohio. — Hepburn  v.  Vonte,  7  Ohio 
N.  P.  590. 


Texas. — Friedlander  v.  Ehren- 
wcrth,  58  Tex.  350. 

13.  Hoagland  v.  Titus,  14  N.  J. 
Eq.  81;  Keron  v.  Coon,  26  N.  J.  Eq. 
26. 

14.  California. — Hicks  v.  Comp- 
ton,  18  Cal.  206. 

Delaware. — Herney  v.  Rash,  3  Del. 
Ch.  321. 

Florida. — Linton  v.  Denham,  6  Fla. 
533. 

Louisiana. — De  La  Croix  v.  Vil- 
lere,  11  La.  Ann.  39. 

New  York. — Metropolitan  El.  R. 
Co.  v.  Manhattan  R.  Co.,  65  How. 
Prac.  277. 

North  Carolina. — Williamston  & 
T.  R.  Co.  v.  Battle,  66  N.  C.  540; 
McBrayer  v.  Hardin,  42  N.  C.  1,  53 
Am.  Dec.  389. 

15.  Corbet  v.  Oil  City  Fuel  S.  Co.. 
6  Pa.  Super.  Ct.  19. 

16.  Brown  v.  Edsall,  9  N.  J.  Eq. 
256. 


453 


§  287  Dissolutions. 

right  to  the  injunction  depends  upon  new  and  important  questions 
of  law  awaiting  adjudication  in  another  tribunal  ;17  and  ordinarily 
the  court  will  defer  the  determination  of  difficult  questions  to  the 
final  hearing,  when  the  evidence  will  be  fully  before  the  court.18 
Though  the  court  has  power  to  construe  a  written  instrument  upon 
a  motion  to  dissolve,  a  wise  discretion  will  often  lead  it  to  defer 
the  construction  till  the  final  hearing.19  And  where  the  effect 
of  a  dissolution  will  be  to  permit  defendant  to  proceed  at  law 
against  a  fund  in  controversy  and  compel  the  holders  of  the  fund, 
in  order  to  protect  themselves  against  loss  from  conflicting  claims, 
to  seek  the  aid  of  the  court  in  another  suit,  the  injunction  will  be 
retained.20  But  as  the  purpose  of  a  restraining  order  pendente  lite 
is  ordinarily  to  preserve  property  in  its  existing  condition  until  a 
determination  of  the  cause,  such  an  order  will  be  modified  if  it 
gives  one  party  an  undue  advantage  over  the  other  in  the  mean- 
lime.21 

§  287.  Same  subject. — And  an  injunction  may  be  conditionally 
dissolved  and  retained  until  the  condition  is  complied  with.22  An 
injunction  to  restrain  suits  against  plaintiff  may  be  retained  as  to 
some  of  the  suits  and  dissolved  as  to  others.23    Where  the  dispute 

17.  Morris,  etc.,  R.  Co.  v.  Haskins,  amount  so  found  against  the  com- 
26  N.  J.  Eq.  295.  pany  in  such  form  that  execution  can 

18.  Huffman  v.  Hummer,  17  N.  J.  be  issued  upon  the  decree;  but  the  or- 
Eq.  263.  der   should   be   that,   when    the   com- 

19.  Morris  Canal  Co.  v.  Matthie-  pany  pays  to  the  owner,  or  deposits 
sen,  17  N.  J.  Eq.  385.  in  court,  as  the  case  may  be,  the  sum 

20.  Mosser  v.  Pequest  Min.  Co.,  26  found  by  the  jury,  the  injunction 
N.  J.  Eq.  200.  See  Plunkett  v.  Dil-  shall  be  wholly  dissolved,  but  until 
Ion,  3  Del.  Ch.  496.  that  time  it  is  continued  in  full  force 

21.  Northern  Pac.  R.  Co.  v.  Spo-  and  effect.  Ward  v.  Ohio  River  R. 
kane,  52  Fed.  428.  Co.,   35    W.   Va.   481,    14  S.   E.    142, 

22.  In  a  suit  by  the  owner  of  following  Mason  v.  Bridge  Co.,  20 
property    against     an     internal    im-       W.  Va.  243. 

provement  company  to  enjoin  it  from  23.  A  bill  of  interpleader  alleged 
prosecuting  work  that  will  irrepar-  that  defendant  J.  contracted  in  writ- 
ably  injure  his  property,  where  the  ing  to  build  some  houses  for  plain- 
court  has  directed  an  issue  of  quart-  tiff;  that  notices  had  been  served  on 
turn  damnificatus,  it  is  error,  upon  plaintiff  by  certain  creditors  of  J., 
the  finding  of  the  jury,  to  decree  the  whose  claims  for  materials  furnished 

454 


Dissolutions. 


§28^ 


is  not  about  facts,  but  is  essentially  a  question  of  legal  construc- 
tion, the  matters  in  controversy  are  not  of  such  a  nature  that  they 
can  be  met  and  denied  by  the  answer  so  as  to  entitle  the  defendant 
to  a  dissolution  as  a  matter  of  course.24  And  however  positive 
and  satisfactory  the  answer  may  be  in  its  denial  of  the  equities 
of  the  bill,  the  court  in  the  exercise  of  its  discretion  may  refuse 
to  dissolve  when  the  injunction  will  probably  cause  less  incon- 
venience to  defendant  than  would  result  to  complainant  from  its 
dissolution.25 


for  the  houses  aggregated  $4,597.06; 
that  there  was  due  from  plaintiff  on 
the  contract  $3,593.83;  that  J.'s 
creditors  intended  to  sue  plaintiff 
for  their  claims,  and  some  had  al- 
ready begun  actions;  that  plaintiff 
was  ready  to  pay,  but  could  not 
safely  do  so ;  and  sought  to  have  de- 
fendants interpleaded.  On  filing  the 
bill,  and  paying  into  court  the 
amount  stated  to  be  due,  an  injunc- 
tion issued  restraining  the  prosecu- 
tion of  suits  against  plaintiff  by  de- 
fendant J.  or  the  lien  claimants.  De- 
fendant J.  answered  the  bill,  alleged 
that  the  complaint  incorrectly  stated 
the  amount  due  from  plaintiff,  that 
there  was  due  him  $4,500,  as  well  as 
$393.06  for  extra  work,  and  that  he 
had  filed  a  mechanic's  lien  for  that 
amount,  and  claimed  that  he  should 
not  be  restrained  from  prosecuting  it. 
Held  that,  as  plaintiff's  liability  to 
J.'s  creditors  arose  under  the  me- 
chanic's lien,  and  was  limited  to  the 
amount  due  to  J.,  plaintiff  was  en- 
titled to  have  the  case  retained  until 
the  amount  of  the  indebtedness  to  J. 
was  ascertained,  and,  to  that  end, 
that  the  injunction  should  be  dis 
solved  as  to  J.'s  prosecuting  that 
suit,  but  retained  as  to  the  other  de 
fendants.  Aleck  v.  Jackson,  49  N.  J. 
Eq.  507,  23  Atl.  760. 

24.  Boston  Franklinite  Co.  v.  New 
Jersey  Zinc  Co.,  13  N.  J.  Eq.  215. 


25.  New  England  Mortgage  Co.  t. 
Powell,  97  Ala.  483,  12  So.  55,  per 
Head,  J.:  "The  answer  fully  de 
nied  the  fact  of  payment  of  the  se- 
cured debt.  The  court  held  that  the 
case  comes  especially  within  the  doc- 
trine of  Harrison  v.  Yerby,  87  Ala. 
185,  6  So.  3,  in  which  it  was  held 
that  the  chancery  court  is  invested 
with  wide  latitude  in  acting  upon 
motions  to  dissolve  injunctions  on 
the  denials  of  the  answer,  and  that, 
whenever  it  appears  that  a  continu 
ance  of  the  writ  will  probably  cause 
less  injustice  and  inconvenience  to 
the  defendant  than  would  result  to 
the  complainant  from  its  dissolution, 
this  discretion  is  well  exercised  in 
denying  the  motion  for  dissolution. 
In  the  present  case,  complainant  has 
certainly  the  right  to  try  the  ques- 
tions raised  upon  the  validity  of  the 
mortgage.  If  there  be  a  foreclosure 
pending  that  trial,  he  must  needs 
surrender  possession  to  the  purchaser 
within  10  days,  or  else  forfeit  his 
right  to  redeem  under  the  statute,  if 
upon  the  hearing  of  his  cause  he 
should  fail,  and  the  validity  of  the 
mortgage  be  established.  If  he  should 
succeed  in  obtaining  the  relief 
prayed,  he  will  have  suffered  such  en- 
forced temporary  dispossession,  with 
the  injurious  consequences  which 
readily  suggest  themselves  to  the 
practical  mind.     It  is  his  home,  and 


455 


§288 


Dissolutions. 


§  288.  Dissolution  where  the  sole  relief  is  injunctive. — When 
the  injunctive  relief  sought  is  not  merely  auxiliary  to  the  principal 
relief  demanded  in  the  action,  but  is  the  relief  itself,  the  court  will 
not  dissolve  a  preliminary  injunction,  but  will  continue  it  to  the 
hearing  on  the  merits,  where  there  is  any  reasonable  possibility 
that  the  plaintiff  is  entitled  to  the  relief  demanded.26  An  injunc- 
tion should  not  be  dissolved  but  be  continued  until  final  hearing 
where  a  dissolution  will  defeat  all  practical  relief  under  the  final 


he  would  be  deprived  of  shelter.  His 
teams  would  probably  remain  idle. 
His  laborers  would  probably  find 
other  fields  of  employment.  His 
farming  operations  would  be  f  or  a 
time  broken  up,  and  he  would  suffer 
inconvenience  and  loss  necessarily  in- 
cident to  their  re-establishment.  We 
perceive  no  such  special  inconvenience 
or  loss  the  defendant  would  suffer  by 
the  suspension  of  foreclosure  until 
this  cause  can  be  heard  on  its  merits; 
and,  if  there  be  damage  resulting  to 
it  from  the  injunction,  it  is  such  as 
can  be  readily  measured  and  ascer- 
tained, and  fully  compensated  for  by 
action  on  the  injunction  bond.  We 
are  of  opinion,  therefore,  that  the 
injunction  ought  to  be  retained  un- 
til the  hearing;  and  the  order  or  de- 
cree of  the  chancellor  is  affirmed." 

26.  Marshall  v.  Commissioners,  89 
N.  C.  103,  per  Merrimon,  J. :  "  If  the 
defendants  shall  be  permitted  to  go 
on,  pending  the  action,  and  sell  the 
lots  of  land  as  they  propose  to  do, 
and  it  shall  turn  out  in  the  end  that 
there  is  injury  to  the  plaintiffs,  and 
that  irreparable,  the  court  could  not 
grant  adequate  relief.  When  the 
court  can  see  that  the  injury  appre- 
hended and  complained  of  may  arise, 
it  will  not,  by  its  own  act,  cut  itself 
off  from  the  opportunity  to  grant  re- 
lief; on  the  contrary,  it  will  take  all 
proper  measures  to  uphold  its  power 


to  grant  or  deny  relief  in  the  orderly 
course  of  procedure.  In  a  case  where 
the  plaintiff  alleges  irreparable  in- 
jury, and  this  is  made  apparent  by 
the  complaint  and  affidavits  to  sup- 
port the  same,  the  court  will  not  dis- 
solve the  injunction  upon  the  answer 
of  the  defendant  admitting  some  of 
the  material  allegations  of  the  com- 
plaint,  however  the  same  may  be  sup- 
ported by  affidavits;  but  the  injunc- 
tion will  be  continued  to  the  hearing 
of  the  action  upon  the  merits;  and 
this  is  so  especially  when  the  main 
relief  sought  is  injunctive  in  its 
character.  The  injunctive  relief 
sought  in  this  action  is  not  merely 
auxiliary  to  the  principal  relief  de- 
manded, but  it  is  the  relief,  and  a 
perpetual  injunction  is  demanded.  To 
dissolve  the  injunction,  therefore, 
would  be  practically  to  deny  the  re- 
lief sought  and  terminate  the  action. 
This  the  court  will  never  do,  where  it 
may  be  that  possibly  the  plaintiff  is 
entitled  to  the  relief  demanded.  In 
such  cases,  it  will  not  determine  the 
matter  upon  a  preliminary  hearing 
upon  the  pleadings  and  ex  parte  affi- 
davits ;  but  it  will  preserve  the  matter 
intact  until  the  action  can  be  regu- 
larly heard  upon  its  merits.  Any 
other  course  would  defeat  the  end  to 
be  attained  by  the  action.  Troy  v. 
Norment,  2  Jones'  Eq.  318;  Lowe  v. 
i  ommissioners,  70  N.  C.  532." 


456 


Dissolutions. 


§289 


decree  if  obtained  by  plaintiff.27  And  to  dissolve  an  injunction 
with  the  inevitable  result  of  defeating  plaintiff's  remedy,  without 
a  trial,  an  appellate  court  must  be  wholly  satisfied  that  the  case 
is  one  in  which  by  settled  adjudication  the  plaintiff  upon  the  facts 
presented  is  not  entitled  to  final  relief.28 

§  289.  Dissolution  where  court  has  been  imposed  on — A 
temporary  injunction  obtained  by  means  of  falsehood  and  misrep- 
resentation, or  by  suppression  of  material  facts,  will  be  dissolved 
almost  as  a  matter  of  course  as  an  imposition  upon  the  court  and 
a  fraud  on  the  law.29    So  where  the  proceeding  in  which  an  injunc- 


27.  Supervisors  v.  Paxton,  56  Miss. 
679,  where  the  court  said :  "  To 
dissolve  the  injunction  in  this  case 
and  allow  the  defendant  to  dispose  of 
these  bonds,  the  title  to  which  passes 
by  delivery  to  an  innocent  purchaser, 
would  effectually  thwart  the  sole  ob- 
ject of  the  litigation,  and  render  fur- 
ther prosecution  of  it  a  farce." 

28.  Youngs  v.  Rondout  &  K.  Gas- 
light Co.,  129  N.  Y.  57,  29  N.  E.  83; 
Hudson  R.  Tel.  Co.  v.  Watervliet 
Turnpike  R.  Co.,  121  N.  Y.  397,  24  N. 
E.  832. 

On  a  motion  to  dissolve  an  in- 
junction pendente  lite,  where  it  ap- 
pears that  but  for  the  injunction  the 
relief  sought  by  the  action  would  be 
lost,  and  it  does  not  clearly  appear 
that  plaintiff  is  not  entitled  to  such 
relief,  the  motion  should  be  denied. 
Hart  v.  Ogdensburg  &  L.  C.  R.  Co., 
6~  Hun,  628,  20  N.  Y.  Supp.  918. 

29.  Ciancimino  v.  Man,  20  N.  Y. 
Supp.  702.  In  this  case  on  the  hear- 
ing of  an  order  to  show  cause  why 
the  injunction  should  not  be  con- 
tinued pendente  lite,  a  motion  to  con- 
tinue the  same  was  held  to  be  prop- 
erly denied,  and  the  injunction  prop- 
erly dissolved,  where  it  appeared  that 
for  a  year  preceding  the  application 


for  such  injunction  the  plaintiff  on 
whose  affidavit  the  same  was  granted 
had  been  enjoined  from  taking  pos- 
session of,  or  in  any  way  interfering 
with,  the  property  or  business  of  such 
corporation;  that  until  the  day  of 
the  application,  defendants  had  been 
in  uninterrupted  possession  of  the 
corporate  property  and  business;  that 
before  business  hours  on  such  day 
plaintiffs,  during  the  absence  of  de- 
fendants, broke  into  the  company's 
office,  and  assumed  custody  and  con- 
trol of  the  company's  books,  papers, 
and  property.  Black  v.  Huggins,  2 
Tenn.  Ch.  780,  by  the  chancellor: 
"  The  rule  is  that  if  on  motion  to  dis- 
solve an  ex  parte  injunction  it  ap- 
pear that  the  plaintiff  has  misstated 
the  case,  either  by  the  misrepresen- 
tation or  suppression  of  material 
facts,  the  injunction  will  be  dissolved 
on  that  ground  alone.  Hilton  v.  Lord 
Granville,  4  Beav.  130;  Clifton  v. 
Robinson,  16  Beav.  355;  Hemphill  v. 
McKenna,  5  Irish  Eq.  57;  Endicott 
v.  Mathis,  9  N.  J.  Eq.  110.  The  rea- 
son is  that  the  utmost  good  faith 
must  be  required  of  those  who  seek 
to  put  in  motion  the  power  of  this 
court  through  its  extraordinary  pro- 
cess."    An  ex  parte  interim  restrain- 


457 


§  289  Dissolutions. 

tion  was  granted  was  collusive  the  court  may  properly  refuse  to 
continue  the  injunction.30  And  where  on  a  motion  to  dissolve  an 
injunction  obtained  by  a  lessee  against  a  lessor  to  prevent  dispos- 
session of  leased  premises,  it  appeared  that  the  lessor  had  previ- 
ously obtained  a  judgment  of  eviction  against  the  lessee  aa 
contumacious,  the  injunction  at  once  was  dissolved,  because  it  waa 
equivalent  to  giving  the  lessee  the  benefit  of  a  suspensive  appeal 
to  which  he  was  not  entitled,  and  so  operated  as  a  fraud  upon  the 
law.31  But  an  allegation  by  complainant  that  defendant's  acta 
caused  an  injury,  which,  at  the  time,  complainant  attributed  to 
another  cause,  does  not  show  such  bad  faith  as  to  justify  the  dis- 
solution of  his  injunction,  where,  so  far  as  appears,  both  causes 
may  have  contributed  to  the  injury.32  A  counter  injunction  ob- 
tained in  a  cross-action  from  a  judge  other  than  the  one  who 
granted  the  first  injunction,  and  which  can  be  enforced  only  by  a 
violation  of  the  first,  should  be  vacated,  without  regard  to  the 
merits.33  An  injunction  pendente  lite  will  be  refused,  and  a  re- 
straining order  previously  issued  will  be  quashed  when  the  bill 
does  not  set  forth  the  conceded  facts  in  the  case.34  The  violation 
of  his  own  injunction  by  plaintiff,  where  its  purpose  is  to  pre- 
serve the  existing  status,  is  a  gross  abuse  of  the  mandate  of  the 
court,  for  which  the  injunction  may  be  dissolved.35  However 
serious  the  issue  of  fact  between  the  parties  as  presented  by  their 
conflicting  affidavits,  the  falsity  of  plaintiff's  affidavits  will  not 
often  become  so  apparent  on  appeal  that  the  appellate  court  will 
disturb  the  injunction  on  that  account;36  and  however  serious  the 

ing    order    irregularly    obtained    on  31.    Mengelle    v.    Abadie,    45    La. 

suppression  of  material  facts  may  be  676,  12  So.  921. 

dissolved  without  a  formal  notice  of  32.  Coeur  d'Alene  Min.  Co.  v.  Min- 

motion    to    dissolve    being    given    to  ers'  Union,  51   Fed.  260. 

plaintiff    by    the    defendant,    and    on  33.  People's    R.    Co.    v.    Syracuse, 

such  a  motion  the  plaintiff  ought  to  etc.,  R.  Co.,  22  Abb.  N.  C.    (N.  Y.) 

pay    costs    for     imposing    upon    the  427,  6  N.  Y.  Supp.  326. 

court,  though  on  the  merits  he  may  34.    St.   Louis   Foundry   v.   Carter 

be  entitled  to  injunctive  relief.    Boyce  Printing  Co.,  31  Fed.  524. 

v.  Gill,  64  L.  T.  824.    And,  see,  Con-  35.   Van  Zandt  v.  Argentine  Min. 

over  v.  Piuckman,  32  N.  J.  Eq.  685.  Co.,  2  McCrary,   642. 

30.  Kimball    v.    Hewitt,    15    Daly  36.   Davis   v.   Laasiter,    112  N.   C. 

(N.  Y.)   124.  128,   16  S.  E.  899. 

458 


Dissolutions. 


§290 


issues  raised  by  an  answer,  if  their  determination  is  at  all  doubt- 
ful, it  is  not  error  to  continue  the  temporary  injunction  until  the 
hearing  upon  the  merits,  especially  when  it  appears  that  the  sub- 
ject matter  of  the  action  will  remain  unimpaired.37  And  though 
facts  in  reference  to  the  subject  matter  of  the  controversy  may  have 
been  suppressed  by  the  plaintiff  yet  this  is  not  sufficient  reason 
for  dissolving  an  ex  parte  injunction  where  such  facts  were  not 
material  to  a  suit  between  the  plaintiff  and  the  defendant  but  only 
between  the  plaintiff  and  a  third  person.38 

§  290.  Court's  discretion  as  to  dissolution ;  limit  of —  The 

question  whether  an  injunction  shall  be  continued  or  dissolved  is 
one  for  the  court  to  determine  in  the  exercise  of  its  discretion.39 
A  court  will  often  refuse  to  dissolve  an  injunction  where  its  dis- 
solution  would   cause   greater   h?vrm   than    its    continuance,    and 


37  Whittaker  v.  Hill,  96  N.  C.  2, 
1  S.  E.  639;  Turner  v.  Cuthrell,  94 
N.  C.  239;  Harrison  v.  Bray.  92  N. 
C.  488. 

38.  Poirier  v.  Blanchard,  1  N.  B. 
Eq.   322. 

39.  United  States. — Buffington  v. 
Harvey,  95  U.  S.  99,  24  L.  Ed.  381; 
Nelson  v.  Robinson,  Fed.  Cas.  No. 
10114,  1  Hemp.  464. 

Alabama. — Bibb  v.  Shackelford,  38 
Ala.  311. 

California. — White  v.  Nunan,  60 
Cal.  406 ;  Payne  v.  McKinley,  54  Cal. 
532. 

Florida. — Shaw  v.  Palmer  (Pa. 
1907),  44  So.  953;  Allen  v.  Hawley, 
6  Fla.  142. 

Georgia. — Fouche  v.  Rome  Street 
R.  Co.,  84  Ga.  233,  10  S.  E.  726; 
Howard  v.  Lowell  Mach.  Co.,  75  Ga. 
325;  Loyless  v.  Howell,  15  Ga.  554. 

Iowa. — Gossard  Co.  v.  Crosby,  132 
Iowa,  155,  109  N.  W.  483,  6  L.  R.  A. 
(N.  S.)  1115;  Schricker  v.  Field,  9 
Iowa,  366. 


Kansas. — Wood  v.  Millspaugh,  15 
Kan.  14. 

Louisiana. — Cameron  v.  Godchaux, 
48  La.  Ann.  1345,  20  So.  710. 

Minnesota. — Mayer  v.  Petersburg, 
96  Minn.  314,  104  N.  W.  899;  Todd 
v.  Rustad,  43  Minn.  500,  46  N.  W.  73. 

Mississippi. — Jones  v.  Commercial 
Bank,  5  How.  43,  35  Am.  Dec.  419. 

Montana. — Cotter  v.  Cotter,  16 
Mont.  63,  40  Pac.  63. 

New  Jersey. — Jewett  v.  Dringer,  27 
N.  J.  Eq.  271;  Chetwood  v.  Brittan, 
2  N.  J.  Eq.  438. 

New  York. — Pfohl  v.  Sampson,  59 
N.  Y.  174;  People  v.  Schoonmaker,  50 
N.  Y.  499 ;  Miller  v.  Warner,  42  App. 
Div.  208,  59  N.  Y.  Supp.  956 ;  Alvord 
v.  Fletcher,  28  App.  Div.  493,  51  N. 
Y.  Supp.  117;  Grill  v.  Wiswall,  82 
Hun,  281,  31  N.  Y.  Supp.  470;  Minor 
v.  Terry,  6  How.  Prac.  208;  Roberts 
v.  Anderson,  2  Johns.  Ch.  202;  Row- 
ley v.  Van  Benthuysen,  16  Wend. 
369;  Ciancimino  v.  Man,  1  Misc.  R. 
121,  20  N.  Y.  Supp.  702. 
Texas.— Hart  v.  Mills,  38  Tex.  517. 


459 


£290 


Dissolutions. 


would  be  especially  harmful  to  public  interests.  Thus  where  a 
successor  to  a  wrongfully  discharged  principal  of  a  normal  school 
has  been  appointed,  and  the  school  year  is  nearly  ended,  an  in- 
junction restraining  the  dismissed  principal  from  assuming  to  act 
as  principal  will  not  be  dissolved  on  account  of  the  consequent 
harm  to  a  public  school.40  The  court  may  also  in  the  exercise  of 
its  discretion  dissolve  a  temporary  injunction  where  it  appears  that 
the  injury  to  the  defendant  by  its  continuance  will  be  greater  than 
the  corresponding  benefit  to  the  complainant.41  And  in  the  exercise 
©f  this  discretion  it  may  modify  an  injunction.42  The  dissolution 
of  a  temporary  injunction  does  not  rest  in  the  discretion  of  the 
nisi  prius  court  when  it  appears  on  the  face  of  the  pleadings  that, 
as  a  matter  of  law,  the  injunction  should  be  dissolved.  Thus 
where  an  injunction  attacks  the  validity  of  a  statute,  and  in  effect 
suspends  its  operation,  it  must  be  dissolved  on  the  injunction  peti- 
tion alone,  if  the  petition  does  not  clearly  show  it  to  be  unconstitu- 
tional.43 


40.  Edinboro  Normal  School  v. 
Cooper,  150  Pa.  St.  78,  24  Atl.  348, 
per  Williams,  J. :  "  If  no  other  con- 
siderations presented  themselves  than 
such  as  are  personal  to  the  trustees 
and  the  appellant,  we  should  not  hesi- 
tate to  dissolve  the  injunction;  but 
the  State  Normal  School  and  its  work^ 
are  also  entitled  to  consideration. 
The  school  year  is  near  its  close.  An- 
other principal  has  conducted  the 
school  since  February  9,  and  is  in  ac- 
cord with  the  trustees.  The  appellant 
cannot  hope  for  a  re-election.  In 
view  of  what  has  transpired,  includ- 
ing his  own  conduct  prior  to  the 
granting  of  the  injunction,  it  is 
doubtful  if  his  re-election  would  be 
helpful  to  him  or  the  school.  .  .  . 
Having  regard  to  the  public  interests 
involved,  we  shall  leave  the  injunc- 
tion to  stand  so  far  as  it  enjoins 
against  interference  with  the  author- 
ity or  functions  of  the  new  principal, 


or  the  management  of  the  school.  If 
it  be  thought  to  have  any  wider 
scope  or  purpose,  it  is  as  to  such 
purpose  dissolved.  This  decree  is 
made  with  a  saving  of  all  rights  of 
appellant  to  proceed  at  law  for  the 
collection  of  his  salary  for  the  re- 
mainder of  the  year.  The  costs  of 
his  appeal  to  be  paid  by  the  appel- 
lees." 

41.  McGregor  v.  Silver  King  Min. 
Co.,  14  Utah,  47,  45  Pac.  1091. 

42.  Detroit  &  E.  P.  R.  Co.  v.  Ma- 
comb Circuit  Judge,  109  Mich.  371, 
67  N.  W.  531;  Neale  v.  Wood  County 
Court,  43  W.  Va.  90,  27  S.  E.  370. 

43.  Burlington,  C.  R.  &  N.  Ry.  Co. 
v.  Dey,  82  Iowa,  312,  48  N.  W.  98, 
per  Beck,  C.  J. :  "  It  is  also  insisted 
that  as  the  dissolving  of  an  injunc- 
tion is  a  matter  resting  largely  in  the 
discretion  of  the  court,  the  refusal  of 
the  court  below  will  not  be  disturbed 
unless  it  appears  such  discretion  has 


460 


Dissolutions. 


§291 


§  291.  Discretion  further  considered  and  illustrated. — A  tem- 
porary injunction,  which  seems  harmless  for  the  present,  against 
interfering  with  stocks,  debentures,  dividends,  and  interest, 
though  of  doubtful  necessity,  may  be  left  to  stand  until  further 
order  of  the  chancellor,  or  till  the  final  hearing.44  And  where  a 
temporary  injunction  has  been  granted  by  a  trial  judge,  and  the 
law  side  of  the  case  has  been  adjudicated  by  the  Supreme  Court, 
and  has  been  a  second  time  taken  to  said  court,  and  is  still  pending, 
with  reasonable  certainty  that  an  adjudication  will  soon  be  had, 
the  Circuit  Court  will  not  dissolve  the  injunction,  or  sustain  a 
motion  to  file  a  supplemental  answer.45  It  is  not  an  abuse  of  dis- 
cretion to  dissolve  an  injunction  where  the  acts  enjoined  had 
long  been  acquiesced  in  by  plaintiff,  and  defendant  had  thus  been 
led  into  great  expense.46 


been  abused.  But  this  rule  does  not 
apply  to  cases  involving  questions  of 
law  arising  on  the  face  of  the  peti- 
tion itself.  If  it  appear  upon  the 
face  of  the  pleadings  that  as  a  mat- 
ter of  law  the  injunction  ought  not 
to  have  been  granted,  it  will  be  dis- 
solved. Surely  the  operation  of  a 
statute  will  not  be  suspended  by  in- 
junction for  conflict  with  the  Consti- 
tution under  this  doctrine  of  discre- 
tion, when  the  petition  therefor  upon 
its  face  shows  that  it  is  constitu- 
tional, or  that  it  is  not  clearly  and 
without  doubt  unconstitutional.  The 
failure  to  dissolve  the  injunction 
upon  proper  motion  was  not  done  in 
the  exercise  of  judicial  discretion. 
The  enforcement  and  obedience  to 
rules  of  law  are  not  left  to  the  dis- 
cretion of  the  court." 

44.  Smith  v.  Cuyler,  78  Ga.  654, 
3  S.  E.  406. 

Where  a  bill  for  injunction 
depends  on  a  widow's  title  to 
dower,  and  it  is  disputed,  the  right 
must  be  established  at  law.  For  this 
purpose  the  court  may,  and  ordinarily 


will,  either  direct  an  issue  or  retain 
the  bill,  with  liberty  to  the  complain- 
ant to  bring  an  action  at  law.  But 
whether,  under  such  circumstances, 
the  bill  will  or  will  not  be  retained, 
is  a  matter  resting  in  the  sound  dis- 
cretion of  the  court.  Palmer  v.  Cas- 
person,  17  N.  J.  Eq.  204. 

45.  Reynolds  v.  Iron  Silver  Min. 
Co.,  33  Fed.  354. 

46.  Klein  v.  Davis,  11  Mont.  155, 
27  Pac.  511.  In  this  case  a  tempo- 
rary injunction  to  restrain  a  trespass 
was  granted  on  filing  a  complaint. 
The  affidavits  filed  in  support  of  a 
motion  to  dissolve  the  injunction 
showed  that  the  defendants  owned  a 
placer  mining  claim  in  a  gulch  above 
plaintiff's  land,  on  which  defendants 
had  a  right  to  dump  tailings;  that 
defendants  had  been  engaged  in  dig- 
ging a  flume  on  plaintiffs'  land  for 
18  months,  and  had  dug  it  for  a  dis- 
tance of  750  feet,  at  an  expense  of 
$1,500,  without  objection,  and  with 
plaintiffs'  full  knowledge,  and  had 
but  28  feet  further  to  go  to  complete 
the  flume    when    the    temporary  in- 


461 


§§  291a,  292  Dissolution.  ^ 

§  291a.  Dissolution;  where  party  entitled  to  another  injunc- 
tion.— Though  an  injunction  may  bo  independently  granted,  it 
will  not  be  dissolved  where  it  is  plain  from  the  record  that  the 
party  would  be  entitled  to  the  writ  immediately.47  So  it  is  decided 
that  an  injunction  will  not  be  set  aside  for  irregularities  in  the 
bond  or  affidavit,  if  it  is  manifest  from  a  mere  inspection  of  the 
record  that  the  plaintiff  would  be  immediately  entitled  to  another 
injunction.48 

§  292.  Amending  defects  on  hearing  motion  to  dissolve. — 

The  fact  that  there  is  a  technical  error  or  irregularity  in  connection 
with  the  granting  of  an  injunction,  the  granting  of  which  is  other- 
wise proper,  is  not  ground  for  dissolving  the  injunction.49  So  in 
a  recent  case  in  Louisiana  it  is  said  "  unless  the  defect  pointed 
out  be  radical,  it  is  well  settled  that  an  injunction  will  not  be  dis- 
solved if  it  appear  from  the  record  there  exists  good  cause  for  an 
injunction."  50  And  on  a  motion  to  dissolve,  such  amenable  de- 
fects as  mere  obscurity  or  insufficiency  in  the  form  of  the  state- 
ments of  the  bill  are  not  to  be  regarded,  though  they  might  be 
available  by  way  of  demurrer ;  in  other  words  the  facts  stated,  and 
not  the  manner  in  which  they  are  stated,  nor  the  form  of  the  bill, 
should  be  considered,  and  all  amenable  defects  should  be  treated 
as  amended.51  Thus  a  defect  in  an  affidavit  to  a  bill  for  injunction 
is  no  reason  for  dissolving  the  injunction  on  motion,  unless  com- 
plainant fails,  when  required  by  the  court,  to  supply  a  sufficient 

junction    was    granted.     The    court  citing  Ward  v.  Douglass,  22  La.  Ann. 

viewed    the    premises.       It   was   held  463. 

that  it  was  not  an  abuse  of  discre-  51.  Hendricks  v.  Hughes,  117  Ala. 

tion  to  dissolve  the  injunction.  591,   23   So.    637;    Chambers   v.   Ala- 

47.  Savoie  v.  Thibodeaux,  28  La.  bama  Iron  Co.,  67  Ala.  353;  Nelson 
Ann.  169.  v-  Dunn,  15  Ala.  501 ;  Alabama,  etc., 

48.  Henderson  v.  Maxwell,  22  La.  R.  Co.  v.  Kenney,  39  Ala.  307. 
Ann.  357.  An  injunction  will  not  be  dissolved 

49.  Louisville  &  N.  R.  Co.  v.  Bes-  merely  because  the  complainant,  in 
semer,  108  Ala.  238,  18  So.  880;  his  bill,  has  unintentionally  misstated 
KiTel  v.  Wharton,  5  Ky.  Law  Rep.  some  of  the  facts  on  which  his  claim 
423.  to   relief   is   founded,   such    misstate- 

50.  Cotten  v.  Christen,  110  La.  ments  not  affecting  the  merits. 
444,  34  So.  597,   per  Blanchard,   J.,  Frome  v.  Freeholders,  etc.,  33  N.  J. 

462 


Dissolution.  §  293 

verification.52  And  irregular  service  of  the  injunction  upon  the 
attorney  instead  of  the  party  who  has  appeared,  is  not  a  ground  for 
dissolving  it.53  And  an  injunction  cannot  be  dissolved  on  the 
ground  that  the  service  of  the  writ  was  made  before  the  court  had 
acquired  jurisdiction  of  the  person  of  the  defendant  in  the  action, 
where  such  jurisdiction  was  afterward  obtained  either  by  the  ser- 
vice of  original  notice  or  by  an  appearance.54  That  there  is  a 
defect  of  parties  defendant  is  sometimes  but  not  usually  a  suffi- 
cient ground  for  dissolution  ;55  for  such  a  defect  may  be  amended 
without  prejudice  to  the  injunction.56 

§  293.  Dissolution  for  irregularity;  Alabama  rule. — A  motion 
to  dissolve  an  injunction  can  be  founded  only  on  a  want  of  equity 
apparent  on  the  face  of  the  bill,  or  on  a  duly  verified  answer  which 
denies  all  the  allegations  upon  which  the  equity  of  the  bill  de- 
pends ;  it  cannot  be  founded  on  a  mere  irregularity  in  procedure 
which  does  not  affect  the  merits  of  the  cause,  as  for  instance,  the 
granting  of  the  injunction  before  the  filing  of  the  bill,  and  such 
an  irregularity  is  waived  by  a  motion  to  dissolve  for  want  of  equity, 
or  an  answer  denying  the  equities  of  the  bill.  A  motion  to 
set  aside  or  discharge  an  injunction  for  irregularities  in  the  pro- 
ceedings must  be  made  at  the  first  opportunity,  for  by  appearing 
and  answering  the  defendant  waives  the  irregularities.57 

Eq.  464.    See,  also,  Havannian  v.  Be-  the  objection  on  a  motion  to  take  the 

dessern,  63  111.  App.  353.  answer  from  the  files.      Vermilya  v. 

52.  Forney  v.  Calhoun  County,  84  Christie,  4  Sandf.  Ch.  (N.  Y.)  376. 

Ala.  215,  4  So.   153.     See,  also,  Ja-  53.  Becker  v.   Hager,  8  How.  Pr. 

coby  v.  Goetter,  74  Ala.  427.  (N.  Y.)   68.     The  remedy  for  irregu- 

An  injunction  will  not  be  dissolved  lar    service    being    to    set    it    aside, 

because  of  an  insufficient  verification  Phoenix  Foundry  Co.  v.  North  Riv., 

of  certain  allegations  in  the  bill,  when  etc.,  Co.,  6  N.  Y.  Civ.  Pro.  106. 

the  defendant  by  answer  admits  the  54.  District  Township  of  Lodomillo 

unverified   facts.      Conover   v.   Ruck-  v.    District    Township    of    Cass,    54 

man,  34  N.  J.  Eq.  293,  297.  Iowa,  115. 

Upon  a  motion  to  dissolve  an  in-  55.   Schulten    v.    Lord,    4    E.    D. 

junction  on  bill  and  answer,  an  objec-  Smith  (N.  Y.),  206. 

tion   that   the   answer   is   irregularly  56.   Irick   v.   Black,   17  N.  J.   Eq. 

sworn,     the     irregularity     requiring  190;   Johnson  v.  Vail,   14  N.  J.  Eq. 

proof,   will   not  be   considered.      The  424. 

complainant    should    have    presented  57.  Ex  parte  Sayre,  95  Ala.  288, 

463 


§293a 


Dissolution. 


§  293a.  Fatal  defects  or  irregularities. — An  injunction  may  be 
dissolved  where  the  affidavit  and  papers  upon  which  it  was  granted 
are  illegible.58  And  an  irregularity  in  an  injunction  arising  from 
the  fact  that  it  is  antedated  is  held  to  be  sufficient  ground  for  dis- 
solving it.59  In  a  case  in  New  Jersey  it  is  decided  that  where  an 
injunction  is  not  issued  in  accordance  with  the  terms  prescribed  by 
statute  a  party  will  not  be  put  to  his  motion  to  dissolve  the  injunc- 
tion but  that  the  party  is  entitled  to  summary  relief  and  that  it 
will  be  set  aside  for  irregularity.60 


11  So.  378,  per  Coleman,  J.:  "  While 
we  have  found  no  authority  declar- 
ing directly  that  it  is  a  proper  prac- 
tice to  grant  the  issue  of  an  injunc- 
tion before  the  filing  of  the  bill,  the 
authorities  are  abundant  which  hold 
that  such  an  order  before  filing  the 
bill  is  not  void,  but  at  most  is  a  mere 
irregularity.  In  the  case  of  East  & 
West  R.  Co.  v.  East  Tennessee,  V.  & 
G.  R.  Co.,  75  Ala.  275,  it  is  declared : 
'  A  motion  to  dissolve  an  injunction 
can  be  founded  only  on  a  want  of 
equity  apparent  on  the  face  of  the 
bill,  or  on  a  full  and  complete  denial, 
by  the  verified  answer  of  a  material 
defendant,  of  the  allegations  upon 
which  the  equity  of  the  bill  depends. 
The  motion  itself  is  a  waiver  of  the 
error  or  irregularity,  if  any,  which 
may  have  attended  the  order  for  the 
issue  of  the  writ,  or  which  may  be 
in  the  writ  alone.  These  are  avail- 
able only  upon  motion  for  a  discharge 
of  the  injunction,  which  must  pre- 
cede any  act  on  the  part  of  the  de- 
fendant in  recognition  or  affirmance 
of  its  regularity.'  And  in  Jones  v. 
Ewing,  56  Ala.  362,  it  was  held;  'If 
the  injunction  has  been  irregularly 
granted,  .  .  .  the  remedy  is  not 
by  a  motion  to  dissolve.  Such  mo- 
tion, founded  as  it  can  be  only  on  a 
want  of  equity  in  the  bill,  or  the  full 
and  complete  denial  of  its  equity  by 


the  answer,  is  a  waiver  of  the  irregu- 
larity, if  any  has  occurred  in  the 
grant  of  the  writ.'  A  number  of  au- 
thorities are  cited  in  support  of  the 
rule  of  law  as  declared.  In  Parker  v. 
Williams,  4  Paige  (N.  Y.),  439,  it 
was  held  that  '  an  irregularity  in  the 
service  of  the  injunction  was  waived 
by  the  defendant  voluntarily  appear- 
ing and  putting  in  his  answer.  It 
was  therefore  too  late  for  him  to 
make  the  objection,  after  such  a  lapse 
of  time,  and  after  those  proceedings 
had  taken  place.  When  a  party  seeks 
to  set  aside  the  proceedings  of  his 
adversary  upon  a  technical  irregu- 
larity, he  must  make  his  application 
the  first  opportunity  he  has  for  that 
purpose.'  We  are  of  opinion  that  the 
chancery  court  was  without  jurisdic- 
tion to  render  a  decree  in  vacation 
discharging  the  injunction,  and  in  de- 
creeing the  order  granting  the  injunc- 
tion to  be  void.  We  are  further  of 
the  opinion  that  the  filing  an  answer 
and  moving  the  court  to  dissolve  the 
injunction  for  want  of  equity,  and 
upon  answer,  was  a  waiver  of  the  ir- 
regularity." 

58.  Johnson    v.    Casey,    28    How. 
Prac.    (N.  Y.)    492. 

59.  Brodie  v.  Cronly,  3  Edw.  Ch. 
(N.  Y.)  355. 

60.  Marlatt  v.   Perrine,   17  N.   J. 
Eq.  49. 


464 


Dissolution.  §§  293b,  294 

§  293b.  Vagueness  as  ground  for  dissolution. — Vagueness  in 
an  injunction  furnishes  a  good  ground  for  its  dissolution.  So  it 
was  decided  that  an  injunction  was  properly  dissolved  for  this 
reason  where  it  was  sued  out  to  restrain  the  defendants  from 
trespassing  upon  the  lands  of  the  plaintiff  but  did  not  sufficiently 
designate  what  lands  the  plaintiff  claimed  as  his.61 

§  294.  Dissolution  where  no  bond  given ;  defective  or  insuffi- 
cient bond. — Where  it  is  ordered  that  an  injunction  issue  on  peti- 
tioner executing  a  bond,  and  the  record  fails  to  show  that  any  bond 
was  given,  a  motion  to  dissolve  the  injunction  on  the  ground  that 
no  sufficient  bond  was  executed  will  be  granted.62  Under  a  Code 
provision  that  the  injunction  shall  be  dissolved  upon  failure  of  the 
sureties  on  the  injunction  bond  to  justify  at  the  appointed  time 
and  place,  as  required  by  the  Code,  it  is  decided  that  if  such 
"failure  to  justify  appears  to  have  been  caused  by  the  plaintiff's 
mere  mistake  as  to  the  time  when  the  justification  should  take 
place,  the  injunction  should  not  be  dissolved  without  giving  the 
sureties  a  further  opportunity  to  justify.63  Again,  while  an  injunc- 
tion may  be  dissolved  on  the  ground  of  defects  in  the  bond,64  yet 
if  an  injunction  bond  is  defective  or  insufficient  the  better  practice 

61.  Avery  v.  Onillon,  10  La.  Ann.  the   requisite   security."      Marlatt  v. 
127.  Perrine,  17  N.  J.  Eq.  49,  51. 

62.  Ricker  v.  Douglas,  75  Tex.  180,  Where     an     injunction    is    issued 
12  S.  W.  975.  without  the   requisite  security  being 

Where  an  injunction  is  given,  the  court  will  set  it  aside  for 
granted  contrary  to  the  statute  irregularity,  with  costs.  Loveland  v. 
— requiring  secnrity  in  certain  Burnham,  1  Barb.  Ch.  (N.  Y.)  65. 
cases — the  party  is  entitled  to  sum-  63.  McSherry  v.  Penn.  Consoli- 
mary  relief.  He  will  not  be  put  to  dated  Gold  Mining  Co.,  97  Cal.  637, 
his  motion  to  dissolve;  it  will  be  set  32  Pac.  711.  In  Smith  v.  Harrington, 
aside  for  irregularity.  In  such  a  49  Miss.  771,  the  motion  to  dissolve 
case,  the  injunction  was  ordered  to  be  was  on  the  ground  that  no  good  and 
set  aside,  with  costs,  unless  complain-  sufficient  bond  was  filed  in  accordance 
ant,  within  three  days,  deposit  the  with  the  conditions  prescribed  by  law, 
money  or  give  the  security  required  and  approved;  the  court  held,  on  ap- 
by  the  statute.  But  the  court  said :  peal,  that  it  was  error  to  dissolve  the 
"  If  the  injunction  were  set  aside,  a  injunction  without  giving  complain- 
new  one  would  be  granted  immedi-  ants  time  to  perfect  the  bond, 
ately  upon   the  complainant's  giving  64.  Gamble    v.    Campbell.    6    Fla. 

465 
30 


§295 


Dissolution. 


is  to  retain  the   injunction,  subject  to  the  filing  of  a  new  or 
amended  bond  within  a  reasonable  time  to  be  fixed  by  the  court.*5 

§  295.  Dissolution  on  defendant's  bond. — The  New  York 
statute  providing  that  the  court  shall  vacate  an  injunction  on  the 
defendant's  bond,  when  the  injury  enjoined  is  not  irreparable,66 
applies  both  to  injunctions  ad  interim  and  to  injunctions  pendente 
lite.61  But  under  the  foregoing  statute  requiring  the  court  to 
vacate  an  injunction  on  the  completion  of  an  undertaking  where 
the  injury  is  not  irreparable,  an  injunction  will  not  be  vacated 
where  the  plaintiff's  right  is  clear,  as,  for  instance,  where  a  horse- 
railroad  track  has  been  laid  without  authority  through  a  street 
the  fee  of  which  is  in  an  abutter.68  Where,  however,  both  parties 
have  rights  within  the  locus  in  quo,  and  seem  to  be  acting,  partly 
if  not  wholly,  under  authority  of  law,  the  plaintiff's  injunction 
must  be  dissolved,  where  he  can  be  protected  by  an  indemnity  bond 
and  by  an  arrangement  which  will  secure  to  both  parties  a  reason- 
able exercise  of  their  rights.69    And  in  an  action  to  enjoin  defend- 


347;  Massie  v.  Mann,  17  Iowa,  131; 
Boawell  v.  Wheat,  37  Miss.  610;  Pil- 
low v.  Thompson,  20  Tex.  206. 

65.  Beauchamp  v.  Supervisors,  45 
111.  274. 

Florida. — Gamble  v.  Campbell,  6 
Fla.  347. 

Illinois. — Beauchamp  v.  Supervis- 
ors, 45  111.  274. 

Iowa. — Massie  v.  Mann,  17  Iowa, 
131. 

Mississippi. — Smith  v.  Harrington, 
49  Miss.  771;  New  v.  Wright,  44 
Miss.  202. 

New  York. — Fayerweather  v. 
Smith,  3  How.  Prac.  98. 

Texas. — Downes  v.  Monroe,  42  Tex. 
307. 

Virginia. — Ross  v.  Pleasants,  1 
Hen.  &  M.  1. 

66.  N.  Y.  Code  Civ.  Pro.,  §  629, 
as  amended  by  L.  1883,  ch.  404. 

67.  Metropolitan   R.    Co.   v.    Man- 


hattan R.  Co.,  11  Daly  (N.  Y.),  367. 

68.  Thayer  v.  Rochester  City  R. 
Co.,  15  Abb.  N.  C.  (N.  Y.)  52. 

69.  Plaintiff,  a  telephone  company, 
had  authority  to  string  its  wires 
along  certain  streets,  and  sued  to  re- 
strain defendant  from  operating  its 
electric  railway  on  the  same  streets, 
on  the  ground  that  it  interfered  with 
the  telephone  communication.  Upon 
the  motion  for  an  injunction  pendente 
lite,  it  appeared  that  the  adoption  by 
either  party  of  the  "  metallic  cir- 
cuit "  would  obviate  the  electrical  in- 
terference complained  of  by  plaintiff, 
and  that  it  would  be  much  cheaper 
for  the  telephone  company  to  con- 
struct it  than  for  the  railway.  Held, 
that  an  order  granting  the  injunction 
would  be  vacated,  upon  defendant 
stipulating  that  the  court  might  de- 
termine on  the  trial  and  adjudge  to 
plaintiff  such  recovery  for  the  expense 


460 


Dissolution 


§290 


ants  from  interfering  with  a  party  wall  on  the  line  between  their 
premises  and  those  of  plaintiff's,  a  preliminary  injunction  is 
properly  vacated  where  there  is  a  decided  dispute  as  to  the  facts, 
which  can  only  be  settled  by  a  trial,  and  plaintiff  is  fully  indemni- 
fied by  bond  against  loss  from  any  infringement  of  his  rights.70 
And  where  the  complainant  can  be  indemnified  by  defendant's 
bond  and  the  injunction  is  causing  a  serious  loss  to  the  defendant, 
a  court  of  equity  will  be  strongly  inclined  to  dissolve  it.  Thus, 
where  a  part  owner  of  a  ship  enjoins  another,  a  part  owner,  from 
using  it,  the  injunction  should  be  dissolved  on  the  defendant's 
giving  ample  security  for  plaintiff's  interest  and  equitable  rights.71 

§  296.  Same  subject;  in  Louisiana. — The  test  of  the  right  to 
dissolve  an  injunction  on  the  defendant's  bond  is  the  nature  and 
extent  of  the  injury  wrought  by,  or  apprehended  from,  the  en- 
joined acts;  if  the  injury  is  irreparable,  that  is,  not  compensable 
by  money,  dissolution  on  bond  is  not  permitted ;  but  if  reparable, 
dissolution  on  bond  is  permitted.72    Thus,  an  injunction  to  restrain 


and  damage  to  it  by  reason  of  its 
constructing  a.  metallic  circuit  as 
might  be  just  and  equitable,  and  upon 
defendant  giving  a  bond  for  payment 
to  plaintiff  of  the  amount  awarded 
against  it.  Hudson  River  Tel.  Co.  v. 
Watervliet  Turnpike  &  R.  Co.,  56 
Hun,  67,  9  N.  Y.  Supp.  177;  aff'd  121 
N.  Y.  397,  24  N.  E.  832. 

70.  Wynkoop  v.  Van  Buren,  58 
Hun  (N.  Y.),  604,  11  N.  Y.  Supp. 
379. 

71.  Dunham  v.  Jarvis,  8  Barb.  (N. 
Y.)  88;  compare  Austin  v.  Chapman, 
11  N.  Y.  Leg.  Obs.  103.  Where  de- 
fendant has  expended  large  sums  of 
money  in  preparing  mills,  booms  and 
roads  for  getting  out  timber,  and  has 
a  large  number  of  laborers  in  its  em- 
ploy, an  injunction  to  restrain  the 
cutting  of  timber  on  the  land  pend- 
ing an  appeal  to  the  United  States 
Supreme  Court  in  an  action  involv- 


ing the  title  to  the  land,  wherein  de- 
fendant obtained  judgment  against 
plaintiffs  in  the  trial  court,  will  be 
dissolved  on  defendant's  giving  a  bond 
to  plaintiffs,  and  rendering  such  peri- 
odical accounts  as  the  court  may  di- 
rect. Wood  v.  Braxton,  54  Fed.  1005. 
72.  Lattier  v.  Abney,  43  La.  Ann. 
1016,  10  So.  360;  State  v.  Judge  De- 
baillon,  37  La.  Ann.  110.  In  the  last 
case  cited  the  reporter  has  incorrectly 
made  the  court  say :  "  The  test  of  the 
right  to  dissolve  an  injunction  is  the 
nature  and  extent  of  the  injury 
wrought  by  the  injunction."  That 
this  is  inaccurate  is  plain  from  the 
terms  of  art.  307  of  La.  Code  of  Prac- 
tice, which  provides  that,  "  Whenever 
the  act  prohibited  by  the  injunction 
is  not  such  as  may  work  an  irrepar- 
able injury  to  the  plaintiff,  the  court 
may,  in  their  discretion,  dissolve  the 
same,  provided  the  defendant  execute 


467 


§297 


Dissolution. 


a  police  jury  from  building  a  jail  will  be  dissolved  on  defendant's 
filing  a  bond ;  tbe  apprehended  inj  ur y  being  compensable  in  money, 
as  shown  by  the  allegations  of  the  petition  for  the  injunction." 
On  the  hearing  of  a  motion  to  dissolve  the  injunction,  where  the 
defendant  has  given  the  bond  required  by  the  Louisiana  Code  of 
Practice,  evidence  in  justification  of  the  enjoined  act  is  inadmis- 
sible.74 The  dissolution  of  an  injunction,  on  the  filing  of  a  bond 
by  defendant,  operates  as  an  authority  to  perform  the  prohibited 
act  during  the  pendency  of  the  suit,  subject  to  responsibility  under 
the  bond.75 

§  297.  Dissolution  for  laches. — Laches  on  the  part  of  a  com- 
plainant in  proceeding  with  reasonable  diligence  with  the  prose- 
cution of  the  cause  in  connection  with  which  the  injunction  is 
issued  may  be  a  ground  for  dissolving  the  same.78    So  it  is  decided 


his  obligation  in  favor  of  the  plain 
tiff,"  etc.  And  see,  on  the  right  to  a 
dissolution  on  defendant's  bond,  State 
v.  Judge,  33  La.  Ann.  760;  State  v. 
Judge,  29  La.  Ann.  360;  Anderson  v. 
Smith,  28  La.  Ann.  649. 

73.  Lattier  v.  Abney,  43  La.  Ann. 
1016,  10  So.  360.  See,  also,  Levine  v. 
Michell,  34  La.  Ann.  1181;  Osgood  v. 
Black,  33  La.  Ann.  493;  Crescent, 
etc.,  Slaughter  Co.  v.  Butchers' 
Slaughter  Co.,  33  La.  Ann.  930.  In 
the  last  case  it  was  held  that  the 
sworn  allegations  of  the  plaintiff  in 
the  injunction,  that  the  act  to  be  en- 
joined will  cause  irreparable  injury, 
are  not  conclusive  of  the  fact,  and 
does  not  deprive  the  judge  who 
granted  the  injunction  of  all  discre- 
tion in  dissolving  it  on  defendant's 
bond,  though  such  allegations  of  the 
plaintiff  may  be  conclusive  on  plain- 
tiff in  opposing  the  motion  for  disso- 
lution. Levine  v.  Michell,  34  La. 
Ann.  1181. 

74.  New  Orleans  Water  Works  Co. 
v.  Oser,  36  La.  Ann.  918. 


75.  State  v.  Duffel,  41  La.  Ann. 
516,  6  So.  512. 

76.  United  States. — Parker  v. 
Winnipiseogee  Lake  C.  &  W.  M.  Co., 
67  U.  S.  545,  17  L.  Ed.  333. 

Delaware. — Russell  v.  Stockley,  4 
Del.  Ch.  567. 

Florida.— Perry  v.  Wittich,  37  Fla. 
237,  20  So.  238. 

Mississippi. — Payne  v.  Cowan,  Sm. 
&  M.  Ch.  26. 

New  Jersey. — Collings  v.  City  of 
Camden,  27  N.  J.  Eq.  293;  Huffman 
v.  Hummer,  17  N.  J.  Eq.  263;  West 
v.  Smith,  2  N.  J.  Eq.  309. 

New  York. — Depeyster  v.  Graves,  2 
Johns.  Ch.  148;  Furgison  v.  Robin- 
son, Hopk.  Ch.  8. 

North  Carolina. — Hightour  v. 
Rush,  3  N.  C.  552. 

Pennsylvania. — Butler  v.  Egge,  170 
Pa.  St.  239,  32  Atl.  402;  White  v. 
Schlect,  14  Phila.  88. 

South  Carolina. — Hunt  v.  Smith,  3 
Rich.  Eq.  465. 

Virginia. — Motley  v.  Frank,  87  Va. 
432.  13  S.  E.  26. 


468 


Dissolution.  §  297 

that  tJae  complainant  must  exercise  due  diligence  in  the  prosecution 
of  his  cause  or  the  injunction  will  be  dissolved,"  or  the  complain- 
ant required  to  give  security  to  indemnify  the  defendant.78  Thus 
where  the  complainant  took  no  steps  to  advance  his  cause  for  nine 
months,  and  the  defendant  in  the  meantime  served  two  notices  of 
motions  for  dissolution,  the  injunction  was  dissolved  on  the 
ground  of  complainant's  laches.79  And  where  complainant  failed 
to  prosecute  with  diligence  he  was  charged  with  the  costs  of  a 
motion  to  dissolve,  though  the  injunction  was  retained.80  But 
where  sufficient  time  has  elapsed  after  the  granting  of  an  injunc- 
tion pendente  lite,  within  which  the  case  could  have  been  reached 
for  trial  and  disposed  of  on  the  merits,  the  court,  on  appeal,  will 
not  disturb  an  order  continuing  the  injunction  until  trial.81  So, 
too,  a  motion  to  dissolve  or  modify  made  by  defendant  more  than 
a  year  after  the  injunction  was  granted,  and  after  the  cause  has 
been  brought  to  issue  upon  the  merits,  and  unsupported  by  proof 
of  any  new  or  special  circumstances,  is  too  late.82  In  this  connec- 
tion it  is  decided  that  the  plea  of  the  statute  of  limitations  is  an 
affirmative  defense  and  it  is  said  in  a  case  in  New  York  that  the 

77.  Schalk  v.  Schmidt,  14  N.  J.  the  other  defendants  in  their  answer 
Eq.  268;  Corey  v.  Voorhies,  2  N.  J.  charged  collusion  between  the  com 
Eq.  5.  In  Hoagland  v.  Titus,  14  N.  plainant  and  the  defendant  who  had 
J.  Eq.  81,  the  chancellor  said:  "The  not  answered,  it  was  held  that  under 
rule  rests  upon  sound  principle  and  such  circumstances  the  fact  that  all 
should  be  enforced.  The  injunction  the  defendants  had  not  answered 
is  granted  ex  parte.  It  deprives  the  could  not  be  urged  as  an  objection  to 
party  enjoined  of  the  exercise  of  his  the  dissolution  of  an  injunction,  un- 
legal  rights.  .  .  .  Every  principle  less  the  complainant  denied  upon  af- 
of  justice  requires  that  the  defendant  fidavit  all  collusion,  and  stated  suffi 
should  be  restrained  from  the  exer-  cient  reasons  for  not  compelling  an 
cise  of  his  rights  no  longer  than  is  answer  from  all  the  defendants, 
necessary  to  investigate  the  matter  at  Ward  v.  Van  Bokkelen,  1  Paige  (N. 
issue."  Y.),  100. 

78.  Dodd  v.  Flavel,  17  N.  J.  Eq.  80.  Randall  v.  Morrell,  17  N.  J. 
255.  Eq.  343. 

79.  Greenin  v.  Hoey,  9  N.  J.  Eq.  81.  Consolidated  Gas  Co.  v.  City  of 
137.  See,  also,  Depeyster  v.  Graves,  New  York,  63  Hun  (N.  Y.),  629,  17 
2  Johns.  Ch.  (N.  Y.)  148.    Where  the  N.  Y.  Supp.  826. 

complainant   suffered   three  years   to  82.   Florence  Sewing  Machine  Co. 

elapse  without  compelling  an  answer       v.  Grover,  etc.,  Co.,  110  Mass.  1. 
from  one  of  several  defendants,  and 

469 


§'§  298,  299  Dissolution. 

court  knows  of  no  authority  which  makes  that  a  ground  for  setting 
aside  an  injunction  which  otherwise  was  properly  issued.83 

§  298.  Dissolution  where  subpoena  not  served. — Where  the 
complainant  neglects  to  serve  a  subpoena  upon  a  defendant  against 
whom  an  injunction  has  been  granted,  the  defendant  may  appear 
voluntarily  and  apply  to  dissolve  the  injunction,  and  his  motion 
will  be  granted  if  the  complainant  fails  to  excuse  his  laches.84  But 
he  must  do  so  at  the  first  opportunity,  and  he  waives  the  irregu- 
larity by  putting  in  his  answer;85  and  it  is  too  late  to  move  to 
dissolve  after  the  subpoena  has  been  served.86  And  the  neglect  of 
the  complainant  to  serve  a  subpoena  on  one  or  some  of  the  defend- 
ants named  in  the  bill,  is  not  ground  for  dissolving  the  injunction 
as  to  those  who  were  so  served.87  And  ordinarily  it  is  not  a  suf- 
ficient ground  for  dissolution  that  the  subpoena  could  not  be 
served  nor  that  the  injunction  was  served  irregularly  or  without 
the  jurisdiction  of  the  court.88  In  a  case  in  Minnesota  it  is  decided 
that  the  fact  that  the  summons  is  not  served  is  ground  for  the  dis- 
solution of  the  injunction  but  that  the  injunction  is  nevertheless 
obligatory  upon  the  party  served  therewith.89 

§  299.  Motion  to  dissolve  before  answer. — Although  it  is  said 
that  as  a  general  rule  a  court  will  not,  prior  to  the  filing  of  de- 
fendant's answer,  dissolve  an  injunction  which  has  been  properly 
granted,90  yet  it  is  decided  that  the  court  will,  before  the  answer 

83.  Littlejohn  v.  Leffingwell,  40  88.  Corey  v.  Voorhies,  2  N.  J.  Eq. 
App.  Div.  (N.  Y.)  13,  57  N.  Y.  Supp.  5,  where  it  was  held  upon  a  motion 
839.  to     dissolve     an     injunction    on    the 

84.  Lee  v.  Cargill,  10  N.  J.  Eq.  ground  that  the  subpoena  has  not 
331;  West  v.  Smith,  2  N.  J.  Eq.  309;  been  served,  the  sheriff's  return  to  the 
Waffle  v.  Vanderheyden,  8  Paige  (N.  subpoena  is  conclusive  and  cannot  be 
Y.)s  45.  But  see  Corey  v.  Voorhies,  contradicted  by  affidavits,  unless  col- 
2  N.  J.  Eq.  5.  lusion  be  shown  between  the   sheriff 

85.  Parker  v.  Williams,  4  Paige  and  the  complainant  or  his  solicitor. 
(N.  Y.),  439.  89.  Lash  v.  McCormick,   14  Minn. 

86.  Seebor   v.   Hess,   5   Paige    (N.  482. 

Y.),  85.  90.   Norfolk  &   W.   R.   Co.   v.  Old 

87.  Seebor  v.  Hess,  5  Paige  (N.  Dominion  Baggage  Co.,  97  Va.  89, 
Y.),  85.  33  S.  E.  385. 

470 


Dissolution.  §  299 

is  made,  hear  a  motion  to  dissolve  upon  the  ground  of  a  want  of 
equity  in  the  complainant's  bill.91  So  in  a  recent  case  in  Iowa  it 
is  decided  that  a  temporary  writ  of  injunction  may  be  dissolved 
upon  motion,  supported  by  affidavits  disclosing  defensive  matter, 
before  the  filing  of  an  answer  to  the  petition.92  And  it  is  held 
competent  for  the  defendant  in  vacation,  and  before  he  puts  in  his 
answer,  to  move  to  dissolve  the  injunction  on  this  ground.93  This 
was  the  rule  in  New  York  under  the  old  chancery  practice,  but. 
ordinarily  such  a  motion  ought  not  to  be  successful,  as  it  would 
bring  the  case  before  the  chancellor  on  the  same  state  of  facts, 
and  in  dissolving  the  injunction  he  would  reverse  his  own  decision 
on  a  question  of  law.94  As  on  such  a  motion  the  allegations  of  the 
bill  are  to  be  taken  as  true,95  the  chancellor  in  dissolving  his  in- 
junction virtually  admits  that  his  former  interference  with 
defendant  was  unwarranted.98  Conclusions  of  the  pleader  are  not, 
however,  admitted  by  a  motion  to  dissolve  an  injunction  but  only 
facts  which  are  well  pleaded.97  In  New  Jersey  a  motion  to  dis- 
solve for  want  of  equity  in  the  bill  will  be  heard  before  answer 
filed,  especially  when  the  injunction  was  granted  ex  parte?* 

91.  Beard     v.     Hardin,     Hardin     La.  Ann.  124;  Putnam  v.  Forshay,  21 
(Ky.),  12;  Morris  Canal  &  B.  Co.  v.      La.  Ann.  165. 

Biddle,    4   N.    J.    Eq.    222;    Hyre   v.  Michigan. — Schwarz  v.  Sears,  Har. 

Hoover,  3  W.  Va.  11.     See  Fiede  v.  Ch.  440. 

Schneidt,  99  Wis.  201,  74  N.  W.  798.  New   York.— Schermerhorn  v.  New 

92.  Gossard    Co.    v.    Crosby,    132  York,  3  Edw.  Ch.  119. 

Iowa,  155,  109  N.  W.  483,  6  L.  R.  A.  North  Carolina.— Lloyd    v.    Heath, 

(U.  S.)    1115.  45  N.  C.  39. 

93.  Cooper    v.    Alden,    Harr.    Ch.  Virginia. — Peatross  v.  McLaughlin, 
(Mich.)   72,  84.  6  Grat.  64. 

The  injunction  may  be  dissolved  on  West   Virginia. — Ludington  v.  Tif- 

a  special  plea  of  want  of  equity.    Ed-  fany,  6  W.  Va.  11. 

dred  v.  Camp,  Harr.  Ch.  (Mich.)   162.  96.    Schwarz   v.    Sears,   Harr.   Ch. 

94.  Minturn  v.  Seymour,  4  Johns.  (Mich.)    440. 

Ch.   (N.  Y.)   173.  97.  White  v.  Young  Men's  Chria- 

95.  Georgia.— Semmer    v.    Colum-      tian  Ass'n,  233  111.  526,  84  N.  E.  658. 
bus,  19  Ga.  471.  98.  Morris  Canal  Co.  v.  Biddle,  4 

Illinois.— Bennett  v.  McFadden,  61  N.  J.  Eq.  222;  Woodhull  v.  Neafie,  2 

111.  334.  N.  J.  Eq.   409.      Court    Rule    IX    is 

Iowa. — Beeman  v.  Hexter,  98  Iowa,  otherwise :      "  No  motion  to  dissolve 

378,  67  N.  W.  270.  an  injunction  before  answer  shall  be 

Louisiana. — Vance   v.   Cawthou,   32  entertained  unless  the  defendant  shall 

471 


§§  300,  301  Dissolution. 

§  300.  Same  subject. — On  a  notice  of  a  motion  to  dissolve 
given  before  answer  filed,  an  answer  filed  after  notice,  tbougb 
filed  ten  days  before  the  day  fixed  by  the  notice  for  the  motion, 
cannot  be  read  in  support  of  the  motion,  as  the  complainant  has 
the  right  to  expect  that  the  motion  will  proceed  on  the  ease  as  it 
stands  at  the  time  of  notice."  An  answer  signed  by  solicitor  and 
counsel,  as  solicitor  and  counsel  of  defendants,  but  sworn  to  by 
only  one  of  the  two  defendants  is  not  the  answer  of  the  defendants 
but  of  one  only,  and  cannot,  without  the  consent  of  complainant, 
be  read  on  the  motion  to  dissolve,  even  as  the  answer  of  the  defend- 
ant who  has  sworn  to  it.1  Where  an  injunction  has  been  issued 
without  notice,  a  motion  to  dissolve  may  be  made  before  answer.2 
A  motion  to  dissolve  an  injunction  restraining  a  suit  at  law  will 
not  be  granted  before  answer  filed,  on  the  ground  that  the  bill 
on  the  face  of  it  shows  no  equity,  where  a  discovery  is  sought.3 
On  the  hearing  of  a  motion  to  dissolve  the  court  has  no  power  to 
determine  the  entire  case  on  the  merits.4 

§  301.  Rebuttal  of  answer  on  motion  to  dissolve. — The  doc- 
trine is  asserted  in  numerous  cases  that  averments  in  the  answer 
can  not  be  contradicted  by  affidavits,  on  a  motion  to  dissolve  an 
injunction.5  So  it  is  decided  that  a  motion  to  dissolve  an  injunc- 
tion issued  on  the  bill  by  consent,  must  be  considered  solely  upon 

show  good  cause  why  an  answer  hath  4.  Lively  v.  Hunter,   124  Ga.  616, 

not  been  put  in."  52  S.  E.  544. 

99.  Cattell  v.  Nelson,  7  N.  J.  Eq.  5.    United  States. — Poor  v.   Carle- 

122.  ton,   Fed.   Cas.   No.    11272,   3   Sumn. 

1.  Vaughn  v.  Johnson,  9  N.  J.  Eq.  70. 

173.      See,   also,   as   to   the   practice  Alabama. — Long  v.  Brown,  4  Ala. 

where    an    answer    purporting   to    be  622. 

of  several  defendants  is  sworn  to  only  Delaware. — Kersey  v.  Rash,  3  Del. 

by   part  of   them.      Fulton   Bank   v.  Ch.  321. 

Beach,    2    Paige,    307,    6    Wend.    36;  Georgia. — Lewis  v.  Leak,  9  Ga.  95. 

Cooke  v.  Westall,  1  Madd.  265;  Done  Michigan. — Conner  v.  Allen,  Harr. 

v.  Read,  2  Ves.  &  B.  310;  Harris  v.  Ch.  371. 

James,  3  Bro.  C.  C.  400.  New  Jersey. — Merwin  v.   Smith,  2 

2.  Metropolitan,  etc.,  Exchange  v.  N.  J.  Eq.  182. 

Board  of  Trade,  15  Fed.  847.  New  York. — Jacobs    v.    Miller,    10 

3.  Shotwell  v.  Smith,  20  N.  J.  Eq.  Hun,  230 ;  Evans  v.  Van  Hall,  Clarke 
79.  Ch.  22;  Haight  v.  Case,  4  Paige,  525. 

472 


Dissolution. 


301 


the  questions  raised  by  the  answer,  and  that  the  complainant  cannot 
read  affidavits  in  support  of  his  title  in  rebuttal  of  averments  in 
the  answer.6  So  on  motion  for,  or  to  dissolve  an  injunction  in 
copyright  cases,  the  question  of  allowing  the  complainant  to  read 
affidavits  to  rebut  averments  in  the  answer  as  to  his  title,  has  been 
settled  in  England  adversely  to  complainant  ;7  and  the  Federal 
courts  have  generally  followed  the  English  rule.  But  affidavits 
which  do  not  refer  to  title  the  complainant  is  generally  allowed 
to  read  in  rebuttal  of  the  answer.8     And  in  a  large  number  of 


North  Carolina. — Gentry  v.  Hamil- 
ton, 38  N.  C.  376;  Thompson  v.  Al- 
len, 3  N.  C.  328.  Compare  Swindall 
v.  Bradley,  56  N.  C.  353. 

Pennsylvania. — Gillis  v.  Hall,  2 
Brewst.  342.  Compare  Davis'  Exrx. 
v.  Fulton,  1  Tenn.  121. 

6.  Farmer  v.  Calvert,  etc.,  Pub. 
Co.,   1  Flipp.  228. 

7.  Norway  v.  Rowe,  19  Ves.  Jr. 
144,  151,  156;  Piatt  v.  Button,  19 
Ves.  Jr.  447. 

8.  Farmer  v.  Calvert,  etc.,  Pub.  Co., 
1  Flipp.  228,  per  Longyear,  ft. :  "  In 
the  United  States  although  a  practice 
seems  to  have  grown  up  in  some  local- 
ities to  receive  such  affidavits,  yet 
whenever  the  question  has  been  raised 
and  adjudicated,  the  decisions  of  the 
courts,  with  scarcely  an  exception, 
seem  to  have  been  quite  to  the  con- 
trary, and  in  conformity  with  the 
English  practice.  Justice  Grier,  in 
1850,  in  a  patent  case,  Parker  v. 
Sears,  1  Fisher's  Patent  Cases,  94, 
held  that  the  United  States  Circuit 
Courts  were  bound  to  follow  the  set- 
tled rules  of  practice  of  the  English 
courts  of  equity  in  this  respect,  there 
being  no  written  rule  of  court  to  the 
contrary,  and  refused  to  allow  such 
affidavits  to  be  read.  In  1868,  in  an- 
other case,  Goodyear  v.  Mullee,  3 
Fisher's  Patent  Cases,  420,  the  same 
learned    judge    allowed    affidavits    by 


way  of  rebuttal  to  be  read,  but  they 
in  no  manner  related  to  the  question 
of  title.    In  the  case  of  United  States 
v.  Parrott,  1    McAllister,  271,  275,  276, 
the  United   States  Circuit  Court  for 
California  by  McAllister,  J.,  after  an 
able  review  and  full  consideration  of 
the   authorities,   English  and  Ameri- 
can,   including   the   case   of    Poor   v. 
Carleton,  3  Sumn.  70,  held  that  affi- 
davits  as   to   the   title  after   answer 
could  not  be  read  on  a  motion  for  in- 
junction to  stay  waste.    In  Brooks  v. 
Bicknell,  3  McLean,  250,  255,  Justice 
McLean  quotes   approvingly   the  lan- 
guage  of    the   court   in   Morphett   v. 
Jones,  19  Ves.  350,  where  it  is  said: 
'  There  are  many  cases  of  injunction 
where  you  may  reply  to  the  answer 
by  affidavits,  not  on  the  question  of 
title,  but  on  mere  facts,  as  in  the  in- 
stance of  waste.      On  such  questions 
of  fact,  though  not  on  the  title,  affi- 
davits in  reply  to  the  answer  may  be 
read.'    The  learned  judge  then  quotes 
from   1   Smith's  Ch.   Pr.,  where  it  is 
said :     '  If  the  plaintiff  instead  of  ap- 
plying for  the  injunction  upon  affida 
vit,  waits    until    the    defendant  has 
answered,  he  must  rest  his  case  upon 
the  disclosures  made  by  the  answer, 
and  he  is  not  entitled,  either  for  the 
purpose  of  obtaining  or  continuing  an 
injunction,  to  read  affidavits  in  sup- 
port of  his  motion  in  opposition  to 


473 


302 


Dissolution. 


cases  it  has  been  decided  that  affidavits  may  be  admitted  to  contra- 
dict the  answer,9  or  in  support  of  the  complaint  where  the  answer 
is  verified.10  And  in  Montana  it  is  decided  that  where  an  appli- 
cation for  the  dissolution  of  a  restraining  order  is  supported  by 
affidavit,  the  plaintiff  may  under  the  Code11  oppose  the  application 
by  either  oral  or  written  evidence.12 


§  302.  Affidavits  on  motion  to  dissolve. — The  affidavit  of  a 
third  party  annexed  to  an  answer  cannot  be  read  upon  a  motion  to 
dissolve  an  injunction  upon  the  answer,  where  the  complainant's 
affidavit  alone  is  annexed  to  the  bill.13  And  on  a  motion  to  dis- 
solve for  want  of  equity,  or  on  the  answer  which  denies  the  equity, 
the  complainant  cannot  read  affidavits  in  opposition  to  the  motion,14 
but  only  in  opposition  to  affidavits  annexed  to  the  bill.15  On 
motion  to  dissolve  an  injunction,  affidavits  in  support  of  the  in- 
junction to  contradict  matters  in  the  answer  alleged  to  be 
irresponsive  to  the  bill,  cannot  be  read,  if  the  defendant's  counsel 


the  answer,'  and  says :  '  But  cases  of 
waste  or  of  mischief  analogous  to 
waste,  are  an  exception  to  this  rule 
where  the  affidavits  do  not  refer  to 
title.'  That  was  a  patent  case,  and  as 
the  affidavits  did  not  refer  to  title, 
they  were  allowed  to  be  read.  The 
eurrent  of  authority  seems  to  be  all 
one  way,  and  opposed  to  the  reception 
of  the  affidavits." 

9.  California. — Delger  v.  Johnson, 
44  Cal.  182. 

Iowa.— Palo  Alto  B.  &  I.  Co.  v. 
Mahar,  65  Iowa,  74,  21  N.  W.  187. 

New  York. — See  Minor  v.  Bucking- 
ham, 8  Abb.  Prac.  68. 

North  Carolina. — Blackwell  Dur- 
ham Tobacco  Co.  v.  McElwee,  94  N. 
C.  425;  Howerton  v.  Sprague,  64  N. 
C.  451. 

Rhode  Island. — Bradford  v.  Peck- 
ham,  9  R.  I.  250. 

10.  Alabama. — Henry  v.  Watson, 
109  Ala.  335,  19  So.  413. 


California. — Falkinburg  v.  Lucy, 
35  Cal.  52,  95  Am.  Dec.  76. 

New  York. — Fowler  v.  Burns,  20  N. 
Y.  Super.  Ct.  637 ;  Jaques  v.  Areson,  4 
4  Abb.  Prac.  282.  But  see  Servoss  v. 
Stannard,  2  Code  R.  56. 

North  Carolina. — Blackwell  Dur- 
ham Tobacco  Co.  v.  McElwee,  94  N. 
C.  425. 

Wisconsin. — Starks  v.  Redfield,  52 
Wis.  349,  9  N.  W.  168. 

11.  Mont.  Code  Civ.  Proc,  §§  875, 
877,  878. 

12.  Butte  &  B.  C.  M.  Co.  v.  Mon- 
tana Ore  P.  Co.,  21  Mont.  539,  55 
Pac.  112. 

13.  Mulock  v.  Mulock,  26  N.  J.  Eq. 
462;  Gariss  v.  Gariss,  13  N.  J.  Eq. 
320. 

14.  Brown  v.  Winans,  11  N.  J.  Eq. 
267;  Merwin  v.  Smith,  2  N.  J.  Eq. 
182. 

15.  Gariss  v.  Gariss,  13  N.  J.  Eq. 
320. 


474 


Dissolution.  §  303 

disclaim  and  waive  reliance  on  any  irresponsive  matter.1"  But 
affidavits,  copies  of  which  have  been  served  on  the  adverse  party, 
may  be  used  on  the  motion  to  dissolve.17  An  injunction  will  not 
be  dissolved  upon  a  simple  affidavit  contradicting  a  material  fact 
alleged  in  the  bill;  but  the  defendant  must  put  in  his  answer 
denying  the  allegations,  and  then  move  to  dissolve  on  the  bill  and 


§  303.  Dissolution  on  papers  of  original  application. — On  a 

motion  to  dissolve  an  injunction  upon  the  insufficiency  of  the 
complaint,  where  on  its  face  it  appears  that  the  plaintiff  is  not 
entitled  to  any  relief,  the  plaintiff  is  not  allowed  to  offer  addi- 
tional affidavits.19  And  a  similar  rule  exists  under  the  California 
Code  of  Procedure.20  Where  a  temporary  injunction  is  granted 
on  a  petition  which  does  not  state  a  cause  of  action,  the  injunction 
may  be  dissolved,  because  of  the  defect  in  the  petition,  on  a  notice 
which  states  that  the  motion  to  dissolve  will  be  made  on  the  peti- 
tion, and  the  affidavits  on  which  the  injunction  was  granted,  and 
on  such  other  affidavits  as  the  moving  party  may  deem  proper 
to  use  in  support  of  his  motion.21  An  injunction  is  properly  dis- 
solved where  the  statements  in  the  bill  on  which  its  equity  depends 
are  not  stated  as  in  the  complainant's  own  knowledge  and  are  not 
supported  by  any  affidavits  of  their  truth.22  In  Louisiana  it  is 
decided  that  if  it  be  shown  that  the  party  claiming  the  injunction 
was  not  present  and  did  not  take  the  oath,  as  certified  by  the  clerk 
who  issued  the  writ,  it  will  be  dissolved  and  set  aside  because  no 
affidavit  was  made  as  required  by  law.23  And  where  an  injunc- 
tion is  applied  for  it  is  held  that  there  should  be  a  special  affidavit 
of  the  truth  of  all  the  material  facts  upon  which  the  application 

16.  Miller  v.  English,  6  N.  J.  Eq.  N.  W.  187;  Howerton  v.  Sprague,  64 
304.  N.  C.  451,  454. 

17.  Morris  Canal,  etc.,  Co.  v.  Mat-  20.  Falkinburg  v.  Lucy,  35  Cal.  52, 
thiesen,  17  N.  J.  Eq.  385.  95    Am.    Dec.    76. 

18.  Strange    v.    Longley,    3    Barb.  21.  Kemper  v.  Campbell,  45  Kan. 
Ch.   (N.  Y.)    650.  529,  26  Pac.  53. 

19.  Palo  Alto  Banking  &  Invest-  22.  Lee  v.  Clark,  49  Ga.  81. 
ment  Co.  v.  Mahar,  65  Iowa,  74,  21  23.  Barrow  v.  Richardson,  23  La. 

Ann.  203. 

475 


§  304  Dissolution. 

is  founded  and  if  the  injunction  is  issued  upon  the  common  affi- 
davit in  the  form  ordinarily  annexed  to  an  answer  it  will  be  dis- 
solved very  much  as  a  matter  of  course.24  If  the  motion  to  dissolve 
is  made  on  the  same  papers  on  which  the  injunction  wtis  granted, 
no  proof  is  required  from  the  moving  party  ;25  and  in  such  a  case 
the  plaintiff  cannot  use  new  affidavits.26  Under  the  New  York 
practice,  the  granting  or  denial  of  a  motion  to  dissolve,  founded 
only  on  the  papers  on  which  the  injunction  was  granted,  does  not 
prejudice  a  subsequent  application  on  affidavits,  or  upon  the  fail- 
ure of  the  complaint  to  set  forth  a  cause  of  action.27 

§  304.  Answer  as  equivalent  only  to  an  affidavit ;  counter 
affidavits. — In  some  States,  the  answer  is  not  now  as  it  formerly 
was,  conclusive  of  the  defendant's  right  to  a  dissolution,  when  it 
is  direct  and  unqualified  in  its  denials  of  the  material  allegations 
of  the  bill,  but  has  the  effect  of  an  affidavit  only,  and  may  be 
rebutted  by  the  complainant  who  may  introduce  affidavits  on  the 
motion  to  dissolve,  to  oppose  the  defendant's  answer  and  to  sup- 
port his  own  complaint.  This  is  the  case  in  North  Carolina,28 
Florida,29  New   York,30  Iowa,32  and  Rhode  Island,  where  on   a 

24.  Youngblood  v.  Schamp,  15  N.  the  order.  The  Code,  §§  344,  345 — 
J.  Eq.  42.  See,  also,  Hicks  v.  Derrick,  and  this  presupposes  action  on  the 
17  Pa.  Co.  Ct.  R.  605,  holding  that  part  of  the  judge  based  on  the  con- 
a  mere  general  affidavit  is  not  suffi-  sideration  of  all  the  evidence.  The 
cient  to  support  a  preliminary  in-  answer  is  not  now,  as  formerly,  when 
junction.  responsive  to  the  bill,  and  fair  and 

25.  Newbury  v.  Newbury,  6  How.  frank  in  its  statements  conclusive 
Pr.  (N.  Y.)    182.  upon  the  question  of  a  dissolution  of 

26.  N.  Y.  Code  Civ.  Pro.,  §  627;  the  restraining  order,  but  in  the 
Steuben  Co.  Bank  v.  Alberger,  75  N.  words  of  the  statute,  §  344,  '  A  veri- 
Y.  179,  184.  tied  answer  has  the  effect  only  of  an 

27.  N.  Y.  Civ.  Code  Pro.,  §  628.  affidavit.'     Howerton  v.   Sprague,  64 

28.  Blackwell  Tobacco  co.  v.  Mc-  N.  C.  451." 

Elwee,  94  N.  C.  425,  per  Smith,  C.  J. :  29.  Indian  Riv.  Steamboat  Co.   v. 

"  The  answer  under  the  present  prac-  East  Coast  Trans.  Co.,  28   Fla.   387, 

tice,  in  an  application  to  vacate  or  429,  10  So.  480,  per  Marry,  J. :    "  Un- 

modify  an  injunction  issued  upon  the  der    chap.    1098,    Laws    of    Florida, 

complaint  and   its  supporting  affida-  where   the    defendant   in    his    answer 

vits,   is   itself   but  an  affidavit  when  shall   have  denied   the  statements  of 

verified,   and  then  the  plaintiff  may  the  bill,  or  of  the  accompanying  affi- 

produce  other   proofs   in  support  of  davit,  either  party  thereto  shall  have 

476 


Dissolution. 


§305 


motion  to  dissolve  an  injunction  the  answer  is  considered  an  affi- 
davit, and  the  complainant  may  use  counter  affidavits.33  In  Cali- 
fornia, when  the  defendant  moves  to  dissolve  on  the  complaint  and 
answer,  it  has  been  decided  that  the  answer  will  be  treated,  for  all 
of  the  purposes  of  the  motion,  as  an  affidavit,  to  which  the  plaintiff 
is  entitled  on  the  hearing  of  the  motion  to  reply  by  affidavits  with- 
out serving  copies  thereof  on  the  defendant.34 

§  305.  Dissolution  on  denials  of  answer. — The  general  rule 
is  that  when  all  the  material  allegations  of  the  bill  upon  which 
the  plaintiff's  equities  rest  are  fully  denied  by  the  sworn  answer, 
and  the  denial  is  of  the  same  positive  character  as  such  allegations, 
the  injunction  will  be  dissolved.35  So  in  a  recent  case  in  Alabama 
it  is  decided  that  where  every  material  allegation  contained  in  the 


the  right  to  introduce  evidence  in 
support  or  denial  of  the  bill  or 
answer  before  the  injunction  or  other 
summary  order  shall  be  dissolved,  and 
the  chancellor  shall  dissolve  or  con- 
tinue the  order,  or  may  require  se- 
curity, according  to  the  weight  of 
evidence.  The  old  rule  is  modified  by 
this  statute  to  the  extent  of  allowing 
cither  party  to  introduce  evidence  in 
corroboration  or  denial  of  the  bill  or 
answer  and  affidavits  before  the  hear- 
ing on  the  motion  to  dissolve,  and 
that  the  chancellor  shall  then  de- 
termine the  matter  according  to  the 
weight  of  evidence.  Sullivan  v.  Mo- 
reno, 19  Fla.  200;  Fuller  v.  Cason, 
26  Fla.  476,  7  So.  870." 

30.  Under  section  630  of  the  New 
York  Code,  providing  that  a  verified 
answer  has  only  the  effect  of  an  affi- 
davit, the  rule,  that  where  the  equi- 
ties of  the  complaint  are  positively 
denied  by  the  answer  the  injunction 
must  be  vacated,  is  abolished,  and  de- 
nials in  the  answer  have  no  more  ef- 
fect than  denials  in  an  affidavit.  Mc- 
Encroe  v.  Decker,  58  How.  Pr.  (N. 
Y.)  250. 


31.  Krom  v.  Hogan,  4  How.  Prac. 
(N.  Y.)  225. 

32.  Iowa  Code  provides  that,  in 
case  of  a  temporary  injunction  with- 
out opportunity  to  the  defendant  to 
show  cause  against  it,  application 
may  be  made  to  vacate  it,  either  upon 
the  ground  that  the  order  was  im- 
properly granted,  or  upon  the  asnwer 
of  defendants  and  affidavits,  in  which 
latter  case  plaintiff  may  fortify  his 
application  by  counter  affidavits. 
Held,  that  defendant  may  base  his 
motion  on  the  answer  alone,  and  the 
petition  may  then  be  supported  by 
affidavits.  Palo  Alto  Banking  &  In- 
vestment Co.  v.  Mahar,  65  Iowa,  74, 
21  N.  W.  187. 

33.  Bradford  v.  Peckham,  9  R.  I. 
250. 

34.  Delger  v.  Johnson,  44  Cal.  182. 

35.  Huron  Waterworks  Co.  v.  Hu- 
ron City,  3  S.  D.  610,  54  N.  W.  652. 
The  rule  was  applied  in  Barr  v.  Col- 
lier, 54  Ala.  39,  where  the  answer  de- 
nied every  fact  stated  in  the  bill 
which  would  tend  to  establish  the 
usury  charge.  The  rule  laid  down  in 
the     text     was     applied     in     Grant 


477 


g  305 


Dissolution. 


bill  is  unequivocally  denied  a  respondent  is  entitled  to  a  dissolu- 
tion of  an  injunction  unless  it  is  apparent  that  irreparable  mis- 
chief will  probably  follow  the  dissolution  or  some  peculiar  condi- 
ditions  exist  justifying  a  departure  from  the  general  rule.36  An 
answer,  however,  in  order  to  be  sufficient  to  warrant  the  dissolution 
of  an  injunction,  should  deny  the  material  allegations  of  the  bill 
or  complaint  in  terms  as  clear  and  certain  as  those  in  which  they 
are  expressed.37  In  the  exercise  of  their  discretion  the  courts  feel 
justified  in  following  this  general  rule  where  the  defendant  has 


County  v.  Colonial,  etc.,  Mortgage 
Co.,  3  S.  D.  390,  53  N.  W.  746,  where 
in  an  action  to  quiet  title  all  the  equi- 
ties of  the  complaint  were  fully  and 
positively  denied.  See,  also,  follow- 
ing cases: 

Alabama. — Mobile  &  W.  R.  Co.  v. 
Fowl  River  Lumber  Co.  (Ala.  1907), 
44  So.  471;  Shows  v.  Folmar,  117 
Ala.  698,  23  So.  1007;  Hays  v.  Al- 
drich,  115  Ala.  239,  22  So.  465;  Barr 
v.  Collier,  54  Ala.  39. 

California. — Real  Del  Monte  M. 
Co.  v.  Pond  Min.  Co.,  23  Cal.  84. 

Florida. — Shaw  v.  Palmer  (Fla. 
1907),  44  So.  953. 

Iowa. — Taylor  v.  Dickinson,  15 
Iowa,  483;  Anderson  v.  Reed,  11 
Iowa,  177. 

Miivnesota. — Pineo  v.  Heffelfinger, 
29  Minn.  183;  Armstrong  v.  San- 
ford,  7  Minn.  49. 

Mississippi. — Foxworth  v.  Magee, 
48  Miss.  532. 

Nevada. — Maguet,  etc.,  Co.  v.  Page, 
etc.,  Co.,  9  Nev.  346. 

New  Hampshire. — Hollister  v. 
Barkley,  9  N.  H.  230. 

New  Jersey. — Holdredge  v.  Gwynne, 
18  N.  J.  Eq.  26. 

New  York.— Kuntz  v.  White  Co.,  8 
N.  Y.  Supp.  505 ;  Finnegan  v.  Lee,  18 
How.  Pr.  186. 

Pennsylvania. — McCartney  v.  Cas- 
nidy,  141  Pa.  St.  453,  21  Atl.  778. 


Wisconsin. — City  of  Menasha  v. 
Milwaukee  &  N.  R.  Co.,  52  Wis.  414, 
9  N.  W.  396. 

36.  Johnson  v.  Howze  (Ala.  1908), 
45  So.  653. 

37.  United  States. — Northern  Pac. 
R.  Co.  v.  Barnesville  &  M.  R.  Co.,  4 
Fed.  298. 

Alabama. — Columbus  &  W.  R.  Co. 
v.  Witherow,  82  Ala.  190,  3  So.  23. 

Georgia. — Upson  County  R.  Co.  v. 
Sharman,  37  Ga.  644;  Thomas  v. 
Horn,  24  Ga.  481 ;  Daniel  v.  Sapp,  20 
Ga.  514. 

Indiana. — Thompson  v.  Adams,  2 
Ind.  151. 

Maryland. — Sisk  v.  Garey,  27  Md. 
401. 

Mississippi. — Buckner  v.  Bierne,  9 
Sm.  &  M.  304. 

New  Jersey. — Gibby  v.  Hall,  27  N. 
J.  Eq.  282;  Kuhl  v.  Martin,  26  N.  J. 
Eq.  60;  Teasey  v.  Baker,  19  N.  J. 
Eq.  61 ;  Randell  v.  Morrell,  17  N.  J. 
Eq.  343. 

New  York.— Skinner  v.  White,  17 
Johns.  357;  Schermerhorn  v.  Merrill, 
1  Barb.  511;  Roberts  v.  Anderson,  2 
Johns.  Ch.  202. 

North  Carolina. — Rich  v.  Thomas, 
57  N.  C.  71;  Thompson  v.  Mills,  39 
N.  C.  390. 

Tennessee. — Yale  v.  Moore,  3  Tenn. 
Ch.  76. 


478 


Dissolution. 


306 


ample  means  and  can  be  made  to  respond  in  damages  in  case  the 
dissolution  of  the  injunction  should  prove  injurious  to  the  plain- 
tiff and  against  the  merits  of  his  case.28  Where  the  complaint 
alleges  the  facts  giving  the  right  to  an  injunction  on  information 
and  belief,  and  such  alleged  facts  are  positively  denied  under  oath 
in  the  answer,  a  temporary  injunction  must  be  dissolved.39 

§  306.  Dissolution  on  defendant's  denial  of  equities  of  bill 

It  is  said  that  the  rule  seems  to  be  settled  that  the  allowance  of  a 
plea,  which  either  constitutes  a  full  defense  to  the  plaintiff's  whole 
case  or  deprives  him  of  all  power  to  further  prosecute  his  action, 
will,  if  he  holds  an  injunction,  entitle  the  defendant  to  its  disso- 
lution.40 And  it  may  be  stated  as  a  general  rule  that  where  all  the 
equities  of  the  complaint  upon  which  a  temporary  injunction  has 
been  granted  are  specifically  and  positively  denied  by  the  answer 


Virginia. — Scott  v.  Loraine,  6 
Munf.  117. 

West  Virginia. — Mason  City  Salt 
&  M.  Co.  v.  Mason,  23  W.  Va.  211. 

Allegations  'which  are  not 
denied  by  the  answer  should 
be  taken  a*  true  on  motion  to  dis- 
solve. 

United  States. — Young  v.  Grundy, 

6  Cranch,  51,  3  L.  Ed.  149. 
Maryland. — Briesch     v.    McCauley, 

7  Gill,  189;  Crouise  v.  Clark,  4  Md. 
Ch.  403;  Brown  v.  Stewart,  1  Md. 
Ch.  87. 

Mississippi. — Hooker  v.  Austin,  41 
Miss.  717. 

New  Jersey. — Merwin  v.  Smith,  2 
N.  J.  Eq.  182. 

Tennessee. — Tyne  v.  Dougherty,  3 
Tenn.  Ch.  52. 

38.  In  Caulfield  v.  Curry,  63  Mich. 
594,  30  N.  W.  191,  the  court  said: 
"  The  answer  in  this  case  squarely 
meets  all  the  allegations  of  the  bill, 
and  denies  them.  The  defendant 
Holmes   is  responsible,  and   there  is, 


therefore,  no  occasion  for  the  inter- 
ference of  the  court  with  his  action 
until  his  fraud  is  established."  And 
in  Blum  v.  Loggins,  53  Tex.  121,  it 
was  held  that  the  injunction  should 
be  dissolved  because  "  the  equity  of 
the  petition  seems  to  be  fully  met  and 
denied  by  the  sworn  answers,"  citing 
Fulgham  v.  Chevallier,  10  Tex.  519; 
Hansborough  v.  Towns,  1  Tex.  59. 

39.  California. — Yuba  County  v. 
Cloke,  79  Cal.  239,  21  Pac.  740. 

Georgia. — Williams  v.  Garrison,  29 
Ga.  503. 

Michigan. — Caulfield  v.  Curry,  63 
Mich.  594,  30  N.  W.  191. 

Nevada. — Perley  v.  Ferman,  7  Nev. 
309. 

North  Carolina. — McConnick  v. 
Nixon,  83  N.  C.  113. 

40.  Fulton  v.  Greasen,  44  N.  J. 
Eq.  443,  75  Atl.  827,  holding  that 
the  allowance  of  the  plea  will  not  ipso 
facto  dissolve  the  injunction,  but  that 
a  dissolution  will  generally  be 
granted,  as.  of  course,  on  motion. 


479 


m 


Dissolution. 


the  injunction  will  be  dissolved.41  So  a  preliminary  injunction 
will  generally  be  dissolved  where  the  grounds  of  relief  averred  in 
the  bill  are  fully  denied  by  the  defendant's  affidavits  read  on  the 
hearing  of  the  application  ;42  and  the  equities  of  a  bill  being  denied 
by  answer,  an  affidavit  of  the  complainant,  which  affirms  in  general 
terms  only  tie  statements  of  the  bill,  does  not  overcome  the  denial, 


41.  United  States. — Poor  v.  Carle- 
ton,  Fed.  Cas.  No.  11272,  3  Sumn.  70; 
Nelson  v.  Robinson,  Fed.  Cas.  No. 
10114,  1  Hemp.  464. 

Alabama. — Turner  v.  Stevens,  106 
Ala.  546,  17  So.  706;  Clay  v.  Powell, 
85  Ala.  538,  5  So.  330,  7  Am.  St. 
Rep.  70;  Morrison  v.  Coleman,  87 
Ala.  655,  6  So.  374,  5  L.  R.  A.  384. 

California. — Burnett  v.  Whitesides, 
13  Cal.   156. 

Georgia. — Crawford  v.  Ross,  39  Ga. 
44;  Rhodes  v.  Lee,  32  Ga.  470. 

Illinois.— Farrell  v.  McKee,  36  111. 
225. 

Indiana. — Aurora  &  C.  R.  Co.  v. 
Miller,  56  Ind.  88;  Doolittle  v.  Jones, 
2  Ind.  81. 

Iowa. — Phillips  v.  Watson,  63 
Iowa,  28,  18  N.  W.  659;  Taylor  v. 
Dickinson,  15  Iowa,  483. 

Maryland. — Webster  v.  Harding,  28 
Md.  592;  Hyde  v.  Ellery,  18  Md.  496; 
Hutchins  v.  Hope,  12  Gill  &  J.  244. 

Michigan. — Eldred  v.  Camp,  Har. 
Ch.  162. 

Minnesota. — Knoblauch  v.  Minne- 
apolis, 56  Minn.  321,  57  N.  W.  927. 

Mississippi. — Pass  v.  Dykes,  16 
Miss.  92. 

New  Hampshire. — Hollister  v. 
Barkley,  9  N.  H.  230. 

New  Jersey. — Bremer  v.  Day,  23 
N.  J.  Eq.  418;  Winslow  v.  Hudson, 
21  N.  J.  Eq.  172;  Morris  Canal  &  B. 
Co.  v.  Fagan,  18  N.  J.  Eq.  215;  Jones 
v.  Sherwood,  6  N.  J.  Eq.  210. 

New  York. — Oppenheimer  v. 
Hirsch,   5  App.   Div.    232,    38    N.   Y. 


Supp.  311;  Kuntz  v.  C.  C.  White  Co., 
55  Hun,  609,  8  N.  Y.  Supp.  505; 
American  Grocer  P.  Co.  v.  Grocer 
Pub.  Co.,  51  How.  Prac.  402;  Clark  v. 
Law.  22  How.  Prac.  426;  Blatchford 
v.  New  York  &  N.  H.  R.  Co.,  5  App. 
Prac.  276;  Durant  v.  Einstein,  28  N. 
Y.  Super.  Ct.  423. 

North  Carolina. — Perry  v.  Mi- 
chaux,  79  N.  C.  94;  Woodfin  v. 
Beach,  70  N.  C.  455;  Green  v.  Phil- 
lips, 41  N.  C.  223. 

Ohio. — Af  sprung  v.  Althoff,  7 
Ohio  Dec.  550. 

Pennsylvania. — Noble  v.  Becker,  3 
Brewst.  550;  Carpenter  v.  Burden,  2 
Pars.  Eq.  Cas.  24. 

Tennessee. — Lytton  v.  Steward,  2 
Tenn.  Ch.  586. 

Texas. — Blum  v.  Loggins,  53  Tex. 
121;  Lively  v.  Bristow,  12  Tex.  60. 

Virginia. — Spencer  v.  Jones,  85 
Va.  172,  7  S.  E.  180;  Webster  t. 
Couch,  6  Rand.  519. 

West  Virginia. — Shonk  v.  Knight. 
12  W.  Va.  667;  Arbuckle  v.  McClan- 
ahan,  6  W.  Va.  101. 

Wisconsin. — Wilson  v.  Trustees  of 
Village  of  Oruro,  52  Wis.  131,  8  N. 
W.  821. 

But  see  Orleans  Nav.  Co.  v.  New 
Orleans,  1  Mart.  O.  S.    (La.)   23. 

42.  McCartney  v.  Cassidy,  141  Pa. 
St.  453,  21  Atl.  778;  Allen  v.  Haw- 
ley,  6  Fla.  142;  Kuntz  v.  White  Co., 
8  N.  Y.  Supp.  505;  Liebstein  v.  New- 
ark, 24  N.  J.  Eq.  200;  Masterton  v. 
Barney,  11  N.  J.  Eq.  26;  Kent  v.  De 
Baun.  12  N.  J.  Eq.  220. 


480 


Dissolution.  §  306a 

-and  will  not  sustain  a  preliminary  injunction.43  The  general  rule 
is  subject  to  the  qualification  that  the  answer  must  be  of  a  char- 
acter which  entitles  it  to  a  credit  which  is  at  least  equivalent  to 
that  of  the  complaint.44  And  the  rule  is  held  not  to  apply  where 
a  continuance  of  the  injunction  is  reasonably  necessary  for  the 
protection  of  the  rights  of  either  party  to  the  litigation  during  the 
pendency  thereof.45 

§  306a.  Same  subject  continued. — The  general  rule  has  been 
applied  where  a  railroad  company  was  restrained  by  preliminary 
injunction  from  laying  its  tracks  on  a  street,  on  averments  in  the 
bill  and  affidavits  of  fraud  in  procuring  the  consent  of  the  authori- 
ties, and  where  afterwards  on  motion  to  continue  the  injunction 
the  company  presented  affidavits  denying  the  fraud,  it  being  held 
on  appeal  from  the  order  of  continuance  that  the  injunction  should 
be  dissolved.46  And  where  a  bill  to  enjoin  the  obstructing  of  a 
stream  alleged  to  be  navigable  requires  an  answer  under  oath, 
which,  when  filed,  denies  categorically  all  the  averments  in  the 
bill  as  to  the  navigability  of  the  stream,  a  temporary  injunction 
is  properly  dissolved.47  And  a  fortiori  where  an  injunction 
is  granted  on  a  bill,  the  averments  of  which  are  on  information 
and  belief,  and  are  fully  denied  in  the  answer,  and  defendant  is 
responsible,  the  injunction  must  be  dissolved.48    On  motion  to  dis- 

43.  Fuller  v.  Cason,  26  Fla.  476,  7  Brewer  v.  Day,  23  N.  J.  Eq.  418. 
So.  870.     See  Sullivan  v.  Moreno,  19  44.  Thompson    v.    Adams,    2    Ind. 

Fla.    200,    as    to    the    effect    of    the  151;   Sinnett  v.  Moles,  38  Iowa,  25; 

Btatute    providing    that    "  when    the  Morris  Canal  &  B.  Co.  v.  Jersey  City, 

defendant   in   his    answer   shall   have  11  N.  J.  Eq.  13. 

denied  the  statement  of  the  bill  or  of  45.  Milwaukee  Elec.  Ry.  &  L.  Co. 

the     accompanying     affidavit,    either  v.  Boadley.  108  Wis.  467,  84  N.  W. 

party  shall   have  the   right  to  intro-  870. 

duce  evidence  in  support  or  denial  of  46.  Union  St.  Ry.  Co.  v.  Hazleton 

the   bill   and    accompanying   affidavit  &  N.  S.  Electric  Ry.  Co.,  154  Pa.  St. 

or  answer,  before  the  injunction    .    .    .  442,  26  Atl.  557. 
shall   be   dissolved."      And  see   Shot-  47.  Morrison  v.  Coleman,  87  Ala. 

well    v.    Struble,    21    N.    J.    Eq.    31;  655,   6   So.   374.      And   see   Leigh   v. 

Winslow   v.    Hudson,    21    N.    J.    Eq.  Clark,  11  N.  J.  Eq.  110. 
172;  Dellett  v.  Kemble,  23  N.  J.  Eq.  48.    Caulfield    v.    Curry,    63   Mich. 

58;    Dey   v.   Dey,   23   N.   J.   Eq.   88;  594,  30  N.  W.  191;   Hewitt  v.  Kuhl, 

Moies  v.  O'Neill,  23  N.  J.  Eq.  207;  25  N.  J.   Eq.  24;    Screw  Mower  Co. 

v.  Mittler,  26  N.  J.  Eq.  264. 

481 
31 


30' 


Dissolution. 


solve  on  the  pleadings  and  evidence  where  the  answer  under  oath 
is  responsive  and  denies  the  equities  of  the  bill,  and  the  complain- 
ant has  failed  to  sustain  his  allegations  by  proof  and  makes  no 
application  for  further  time  to  take  testimony,  it  is  proper  to 
dissolve  the  injunction;  and  in  such  a  case  the  sworn  and  re- 
sponsive answer  is  evidence  for  defendant,  though  it  be  shown 
aliunde  that  in  making  it  he  had  no  personal  knowledge  of  the 
facts.49 

§  307.  Same  subject ;  discretion  of  court. — While  the  general 
rule  is  as  stated  in  the  preceding  sections,  the  dissolution,  like  the 
granting  of  a  temporary  injunction,  is  largely  a  matter  of  judicial 
discretion,50  and  will  not  always  be  ordered,  even  when  the  denial 
in  the  answer  is  complete,  where  the  dissolution  of  the  injunction 
would  cause  greater  hardship  to  plaintiff  than  its  continuance 
would  cause  to  defendant.51    The  court  will  not,  ordinarily,  enter- 


49.  Davis  v.  Hart,  66  Miss.  642, 
6  So.  318. 

50.  United  States. — Poor  v.  Carle- 
ton,  Fed.  Cas.  No.  11272,  3  Sumn.  70. 

Alabama. — Harrison  v.  Yerby,  87 
Ala.  185,  6  So.  3;  Bibb  v.  Shackel- 
ford, 38  Ala.  611. 

California. — McCreery  v.  Broun, 
42  Cal.  457. 

Florida. — Carter  v.  Bennett,  6  Fla. 
214. 

Georgia.— Gullatt  v.  Thrasher,  42 
Ga.  429;  Crutchfied  v.  Danilly,  16 
Ga.  432;  Swift  v.  Swift,  13  Ga.  140. 

Indiana. — Spicer  v.  Hoop,  51  Ind. 
365. 

Minnesota. — Hamilton  v.  Wood,  55 
Minn.  482,  57  N.  W.  208. 

Mississippi. — Bowen  v.  Hoskens,  45 
Miss.  183. 

Montana. — Cotter  v.  Cotter,  16 
Mont.  63,  40  Pac.  63. 

New  Hampshire. — Hollister  v. 
Barkley,  9  N.  H.  230. 

New    Jersey. — Snyder    v.     Seeman, 


41  N.  J.  Eq.  405,  5  Atl.  637;  Cregar 
v.  Creamer,  27  N.  J.  Eq.  281. 

New  York. — Grill  v.  Wiswall,  82 
Hun,  281,  31  N.  Y.  Supp.  470;  Du- 
bois v.  Budlong,  23  N.  Y.  Super.  Ct. 
700. 

North  Carolina. — James  v.  Lemly, 
37  N.  C.  278. 

Rhode  Island. — Bradford'  v.  Peck- 
ham,  9  R.  I.  250. 

Texas.— Hart  v.  Mills,  38  Tex.  517. 

Virginia. — Jenkins  v.  Waller,  80 
Va.  668. 

51.  United  States. — See  Poor  v. 
Carleton,  3  Sumn.  70,  Fed.  Cas.  No. 
11272. 

Alabama. — Scholze  v.  Steiner,  100 
Ala.  148,  14  So.  552;  Harrison  v. 
Yerby,  87  Ala.  165,  6  So.  3. 

California. — See  McCreery  v. 
Brown,  42  Cal.  457;  De  Godey  v. 
Godey,  39  Cal.  157;  Hicks  v.  Michael, 
15  Cal.  117. 

Georgia. — See  Cox  v.  Mayor,  18 
Ga.  735;  Loyless  v.  Howell,  15  Ga, 
554. 


482 


Dissolution. 


§307 


tain  a  motion  to  dissolve  upon  bill  and  answer  merely,  where  the 
complainant's  right  is  supported  by  evidence  before  the  court,  or 
within  its  control,  regularly  taken  in  the  cause,  and  on  which  the 
complainant  intends  to  rely  on  the  final  hearing.52  And  where 
the  rights  of  the  defendant  are  protected  by  the  injunction  bond 
furnished  by  plaintiff,  while  the  plaintiff  has  no  security  and  the 
dissolution  of  the  injunction  will  leave  him  at  defendant's  mercy, 
the  discretion  of  the  court  as  to  dissolution  or  continuance  should 
be  exercised  in  favor  of  the  party  most  likely  to  be  injured.53 


Iowa. — Walker  v.  Stone,  70  Iowa, 
103,  30  N.  W.  39. 

New  Jersey. — See  Camden  R.  Co.  v. 
Stewart,  18  N.  J.  Eq.  489;  Irick  v. 
Black,  17  N.  J.  Eq.  190;  Bechtel  v. 
Carslake,  11  N.  J.  Eq.  244;  Chetwood 
r.  Brittan,  2  N.  J.  Eq.  438. 

South  Dakota. — Huron  Waterworks 
Co.  v.  Huron  City,  3  S.  D.  610,  54  N. 
W.  652. 

Virginia. — Kahn  v.  Kerngood,  80 
Va.  342;  Baltimore,  etc.,  R.  Co.  v. 
Wheeling,  13  Gratt.  58. 

In  Stewart  v.  Johnston,  44  Iowa, 
435,  it  was  said:  "The  general  rule 
doubtless  is  that  where  all  the  ma- 
terial allegations  of  a  petition  for 
an  injunction  are  fully  and  satisfac- 
torily denied  in  the  answer,  upon  the 
personal  knowledge  of  the  defendant, 
the  preliminary  injunction,  if  one  has 
been  allowed,  will  be  dissolved  upon 
motion.  But  to  this  rule  there  are 
some  exceptions,  and  one  of  them  is 
where  the  gravamen  of  the  petition  is 
fraud,"  citing  Sinnett  v.  Moles,  38 
Iowa,  25,  and  Dent  v.  Summerlin,  12 
Ga.  5.  It  was  also  held  that  the  rul- 
ing of  a  court  continuing  a  prelimi- 
nary injunction  is  largely  a  matter 
of  discretion,  and  not  to  be  reversed 
unless  there  has  been  abuse  of  discre- 
tion. In  Poor  v.  Carleton,  3  Sumn. 
75,  Story,  J.,  after  a  review  of  the 
authorities,   declares   he  would   have 


been  sorry  to  find  that  any  such  prac- 
tice had  been  established  as  that  an 
injunction  should,  at  all  events,  be 
dissolved  upon  the  mere  denial  of  the 
answer  of  the  whole  merits  of  the 
bill;  that  there  are  many  cases  in 
which  such  a  practice  would  be  most 
mischievous.  He  says  that  the  ques- 
tion of  dissolution,  after  the  coming 
in  of  the  answer,  is  one  addressed  to 
the  sound  discretion  of  the  court,  and 
adds,  that  if  the  authorities  properly 
considered  should  seem  to  establish  a 
contrary  doctrine,  he  would  hesitate 
to  follow  them  in  a  mere  matter  of 
practice  subversive  of  the  very  ends 
of  justice. 

52.  Stevens  v.  Stevens,  24  N.  J. 
Eq.  76. 

5.3.  Huron  Waterworks  Co.  v.  Hu- 
ron City,  3  S.  D.  610,  54  N.  W.  652. 
As  was  said  in  Hicks  v.  Compton,  18 
Cal.  210:  "  The  rights  of  the  defend- 
ant are  protected  by  a  bond  and  no 
injury  can  result  to  them  from  a  con- 
tinuance of  the  injunction.  The 
plaintiff  has  no  security  whatever, 
and  the  dissolution  of  the  injunction 
leaves  him  at  the  mercy  of  the  de- 
fendants. The  granting  and  continu- 
ing of  injunctions  of  this  nature  are 
to  some  extent  matters  of  discretion, 
and  this  discretion  should  always  be 
exercised  in  favor  of  the  party  most 
liable  to  be  injured." 


483 


308 


Dissolution. 


§  308.  Same  subject. — The  rule  is  not  imperative  that  a  tem- 
porary injunction  must  be  dissolved  in  all  cases  where  the  answer 
fully  denies  all  the  allegations  of  the  bill.  The  court  has  a  wide 
latitude  of  discretion,  and,  if  the  continuance  of  the  injunction 
will  probably  cause  less  injustice  and  inconvenience  to  defendant 
than  its  dissolution  will  to  complainant,  the  court  is  at  liberty  to 
continue  it  until  final  hearing. j4  And  whether  the  court  will  dis- 
solve an  injunction  on  the  coming  in  of  the  answer  or  let  it  stand 
until  final  hearing,  is  a  matter  of  discretion.™  And  an  injunction 
will  not  be  dissolved  before  final  hearing,  if,  notwithstanding  a 
denial  of  plaintiff's  equities  by  the  answer,  the  court  believes, 
from  the  circumstances,  that  it  is  quite  probable  that  plaintiff's 
allegations  will  prove  true.56 


54.  Harrison  v.  Yerby,  87  Ala.  185, 
G  So.  3.  An  injunction  was  dissolved 
on  hearing  on  bill  and  answer,  the 
complainant  having  been  tardy  in  his 
application  for  it,  and  its  continuance 
being  likely  to  entail  serious  loss  and 
damage  to  innocent  parties.  The 
court  in  such  cases  as  this  will  weigh 
the  comparative  advantages  and  dis- 
advantages of  the  injunction  to  the 
parties.  Scanlan  v.  Howe,  24  N.  J. 
Eq.  273,  277.  See,  also,  Murray  v. 
Elston,  23  N.  J.  Eq.  127.  Stilt  v. 
Hilton,  30  N.  J.  Eq.  579,  587,  per 
Curiam:  "  Where  the  facts  on  which 
the  equity  of  a  bill  rests  are  posi- 
tively and  explicitly  denied  by  the 
defendant,  on  his  own  personal  knowl- 
edge, and  not  merely  by  way  of  argu- 
ment or  inference,  or  upon  informa- 
tion and  belief,  the  general  rule  is, 
the  injunction  will  be  dissolved.  Suf- 
fern  v.  Butler,  3  C.  E.  Or.  220; 
Everly  v.  Rice,  3  Gr.  Ch.  553:  Boston 
Franklinit<-  f'o.  v.  N.  J.  Zinc  Co.,  2 
Beas.  215.  To  relieve  a  case  from  the 
operation  of  this  rule,  it  must  appear 
that  ;i  dissolution  will  deprive  the 
party  holding  the  injunction  of  all  re- 


lief, if  he  is  finally  successful,  or 
that  a  dissolution  will  work  some 
other  irreparable  mischief,  or  place 
him  in  a  position  of  peculiar  hard- 
ship. Greenin  v.  Hoey,  9  N.  J.  Eq. 
137;  Scott  v.Ames,  11  N.  J.  Eq.  261." 

Where  the  denials  in  the  an- 
swer are  not  full  and  positive, 
and  defendants  are  insolvent,  a 
dissolution  of  a  temportry  injunc- 
tion, based  on  such  denials,  will  not 
be  granted.  Kinney  v.  Ensmenger, 
87  Ala.  340,  6  So.  72;  Vreeland  v. 
N.  J.  Stone  Co.,  25  N.  J.  Eq.  140. 

An  injunction  restraining  an 
action  at  law.  issued  on  a  bill 
by  plaintiffs,  as  administrators,  will 
not  be  dissolved  on  defendant's  an- 
swer, alleging  that  the  money  sought 
to  be  received  did  not  belong  to  the 
estate,  but  was  her  individual  prop- 
erty, by  gift  from  intestate,  and  was 
deposited  with  a  firm,  of  which  one 
of  the  administrators  was  a  member, 
as  the  burden  of  proving  such  gift  is 
on  defendant.  Jackson  v.  Jackson, 
91  Ala.  292,  10  So.  31. 

55.  Jenkins  v.  Waller.  80  Va.  668. 

56.  Stees  v.  Kranz,  32  Minn.  313, 


484 


Dissolution. 


§309 


§  309.  Answers  not  responsive. — On  a  motion  to  dissolvp  an 
injunction  on  bill  and  answer,  the  answer  is  to  be  regarded  only 
so  far  as  it  is  responsive  to  the  bill ;  affirmative  matters  of  defense 
and  matters  in  avoidance  are  not  to  be  considered.57  Thus  on  a 
motion  on  the  bill  and  answer  to  dissolve  a  preliminary  injunction 
restraining  school  directors  from  making  an  unauthorized  ex- 
penditure for  a  school  house,  an  averment  in  the  answer  that  com- 
plainant knew  that  the  contract  was  being  made,  and  did  not  pro- 
test, is  new  matter  in  confession  and  avoidance,  and  cannot  be 
considered,  as  it  is  not  responsive  to  the  bill.58  And  in  a  suit  by 
material  men  who  have  obtained  judgment  establishing  their  lien 
to  enjoin  the  sale  of  a  property  under  a  judgment  of  other  ma- 
terial men,  an  allegation  in  the  answer  that  complainants  had 
consented  to  the  vacation  of  an  order  staying  the  sale  made  by  the 
Circuit  Court,  on  condition  that  defendant-  srive  security  for  the 


20  X.  W.  241.  Otherwise  if  the  state- 
ments of  the  bill  are  improbable. 
Fowler  v.  Roe.  11  X.  J.  Eq.  367. 

57.  Farris  v.  Houston.  7S  Ala.  250: 
Buchanan  v.  Buchanan,  72  Ala.  55; 
Jones  v.  Ewing,  56  Ala.  360:  Hooker 
v.  Austin,  41  Miss.  717:  Columbus 
&  W.  Ry.  Co.  v.  Witherow.  S2  Ala. 
190,  3  So.  23;  Morris  Canal  Co.  v. 
Jersey  City,  12  N.  J.  Eq.  227:  Arm- 
strong v.  Potts.  23  X.  J.  Eq.  92. 

A  bill  by  a  steamboat  com- 
pany alleged  that  it  had  leased  from 
a  railroad  company  a  dock  in  a  nav- 
igable river,  with  the  exclusive  right 
to  use  the  same,  and  that  the  whole 
of  said  dock  was  necessary  for  the 
transaction  of  its  business,  and  asked 
to  enjoin  another  steamboat  company 
from  using  the  dock.  A  preliminary 
injunction  having  been  granted,  de- 
fendant answered,  alleging  that  in  a 
proceeding  by  it  against  the  railroad 
company  the  railroad  commission  had 
decided  that  the  charter  terminus  of 
the  railroad  company  was  at  said 
dock,  and  that  the  dock  and  pier  were 


part  of  its  main  line,  and  that  by  it* 
lease  it  had  attempted  to  vest  in  com- 
plainant   the   exclusive    use    of    said 
dock,   and   ordered   that   the   railroad 
company     extend     to     defendant     the 
same  privileges  at  said  dock  as  werp 
extended  to  complainant.      Complain 
ant  was  not  a  party  to  that  proceed 
ing.     The  answer  set  up  the  decision 
of  the  commission   as  a  bar   to  com- 
plainant's   right    to    the    injunction. 
Held,  that  the  answer  was  not  respon 
sive  to  the  bill,  and  could  not  be  con 
sidered  on  motion  to  dissolve  the  pre- 
liminary   injunction.       Indian    River 
Steamboat  Co.  v.  East  Coast  Transp. 
Co.,  28  Fla.  3S7,  10  So.  480.    And  see 
Randall  v.  Morrell.  17  X.  J.  Eq.  343. 
See  §  313  herein. 

58.  Appeal  of  Luburg  \Pa.),  17 
Atl.  245.  23  VY.  X.  C.  454:  Carson  v. 
Coleman.  1 1  X.  J.  Eq.  106 :  Brewster 
v.  Newark,  11  X.  J.  Eq.  114:  Society, 
etc..  v.  Low.  17  X.  J.  Eq.  IP;  John- 
ston v.  Corey.  25  X.  J.  Eq.  311:  Et 
tenborough  v.  Bishop.  26  X.  J.  Eq. 
262. 


-185 


§  310  Dissolution. 

payment  of  complainants'  claim  in  full  on  reversal  of  the  judg- 
ment of  the  Circuit  Court  on  appeal,  will  not  be  considered,  such 
allegation  being  new  matter,  not  in  response  to  any  of  the  charges 
of  the  bill.59  And  where  an  abutting  owner  enjoined  a  railroad 
company  from  constructing  an  embankment  in  the  street,  on  the 
ground  that  such  construction  was  without  authority  of  law,  and 
the  'answer  set  up  condemnation  proceedings  had  prior  to  the 
incorporation  of  the  town,  to  which  the  original  owner  was  a  party, 
it  was  held  that  this  allegation  was  new  affirmative  matter  and 
could  not  be  considered  on  the  motion  to  dissolve.60  In  such  cases 
of  irresponsive  answers  the  injunction  will  not  be  dissolved  on 
motion,  but  will  be  continued  to  the  hearing.61 

§  310.  Same  subject;  exceptions. — The  filing  of  exceptions  to 
portions  of  an  answer  as  not  in  response  to  the  bill  is  no  objec- 
tion to  the  dissolution  of  the  injunction,  if  the  parts  of  the  answer 
not  thus  excepted  to  contain  a  sufficient  denial  of  the  equities  of 
the  bill  ;62  in  such  a  case,  on  motion  to  dissolve  an  injunction,  the 
courts  will  look  into  such  facts  only  of  the  answer  as  are  respon- 
sive to  the  bill,  and  will  not  consider  a  new  equity  set  up  in  the 
answer  to  avoid  that  disclosed  in  the  bill.63  If  parts  of  an  answer 
are  responsive  to  the  bill,  upon  matters  within  the  defendant's 
knowledge,  and  fully  deny  the  equity  upon  which  the  injunction 
was  based,  it  is  no  reason  for  denying  the  motion  to  dissolve,  that 
the  answer  in  other  respects  is  not  fully  responsive,  and  that  some 
of  the  exceptions  to  it  are  well  taken.64    And  the  court  will  hear 

59.  Hazelhurst  v.  Sea  Isle  City  Iowa,  366.  See,  also,  Ford  v.  Taylor, 
Hotel  Co.    (N.  J.  Ch.),  25  Atl.  201.       140  Fed.  356. 

See,    also,    West    Jersey    R.    Co.    v.  62.  Indian  River  Steamboat  Co.  v. 

Thomas,  21  N.  J.  Eq.  205;  Eaton  v.  East  Coast  Transp.  Co.,  28  Fla.  387, 

Jenkins,'  19  N.  J.  Eq.  362.  10  So.  480.     See  Doe  v.  Roe,  Hopk. 

60.  Columbus    &    W.    Ry.    Co.  v.  Ch.  276. 

Witherow,  82  Ala.  190,  3  So.  23.  63.   Yonge    v.    McCormick,    6    Fla. 

61.  Hayes  v.  Billings,  69  Iowa,  387,  368;  McKinne  v.  Dickenson,  24  Fla. 
28  N.  W.  652;   Huskins  v.  McElroy,       366,  5  So.  34. 

62  Iowa,  508,  17  N.  W.  670;  Fargo  v.  64.  Mitchell  v.  Mitchell,  20  N.  J. 

Ames,  45  Iowa,  494;   Judd  v.  Hatch,       Eq.   234;    McMahon  v.   O'Donnell,   20 
31    Iowa,   491;    Shricker   v.    Field,   9      N.  J.  Eq.  306;  Stitt  v.  Hilton,  31  N. 

486 


Dissolution.  §  311 

argument  upon  exceptions  to  the  answer  and  upon  the  motion  to 
dissolve  at  the  same  time.65  A  test  as  to  the  answer  being  respon- 
sive is,  whether  the  defendant  could,  on  cross-examination  as  a 
witness  at  law,  be  examined  as  to  the  matter  he  states  in  anticipa- 
tion of  his  defense.  Thus,  if  plaintiff  state  a  certain  act  or  contract 
as  the  foundation  of  his  equity,  it  is  responsive  for  the  defendant 
to  state  the  whole  of  such  act  or  contract  as  in  truth  it  was.66  And 
if  the  omission  of  some  allegation  would  furnish  ground  of  excep- 
tion to  the  answer,  the  allegation,  to  the  extent  to  which  it  is 
required,  whether  negative  or  affirmative,  is  responsive ;  but  if  the 
whole  subject  matter  of  the  allegation  in  the  answer  might  have 
been  left  out,  then  the  allegation  in  the  answer  upon  that  subject 
is  not  responsive.67 

§  311.  Dissolving    an    answer    after    exceptions    to    it In 

England  an  order  nisi  to  dissolve  the  common  injunction,  after 
exceptions  to  the  answer  have  been  filed  by  plaintiff,  is  irregular ; 
for  in  such  a  case  the  exceptions  must  be  disposed  of  before  the 
motion  to  dissolve  is  in  order.68  The  defendant  is  at  liberty,  how- 
ever, to  obtain  an  order  nisi  to  dissolve  the  injunction,  as  soon  as 
his  answer  is  filed  and  before  exceptions  to  it  can  be  delivered.69 

J.  Eq.  285;  McGee  v.  Smith,  16  N.  J.  eration  was,  and  it  was  held  to  be 

Eq.  463.  responsive.     So,  in  Pusey  v.  Wright, 

65.  Wyckoff  v.   Cohcran,   4  N.    J.  7  Casey   (Pa.)   387,  me  chief  justice 
Eq.  420.  said:    "If  a  contract  be  set  forth  a 

66.  Eaton's  Appeal,  66  Pa.  St.  denial  that  it  exists,  modo  et  forma, 
483,  490;  Dunham  v.  Gates,  1  Hoff,  would  not  be  good,  for  this  is  subject 
Ch.  185.  In  Dunham  v.  Jackson,  6  to  the  implication  that  it  existed  in 
Wend.  (N.  Y.)  22,  where  a  bill  was  some  other  form.  To  avoid  this,  the 
filed  to  redeem  stock,  and  it  alleged  defendant  should  state  how  it  existed 
the  stock  to  have  been  pledged  for  a  and  wherein  it  had  no  existence." 
certain  sum,  an  allegation  of  the  an-  67.  Bellows  v.  Stone,  18  N.  H. 
swer  that  it  was  pledged  at  the  same  465;  Bell  v.  Farmers'  Deposit  Nat. 
time  for  an  additional  sum,  was  held  Bank,  131  Pa.  St.  318,  332,  18  Atl. 
to  be  responsive.     In  Eberly  v.  Groff,  1079. 

9  Harris  (Pa.),  251,  the  bill  charged  68.  Williams  v.   Davis,   1   Sim.   & 

that  an  assignment  was  without  con-  Stu.  262;   Howes  v.  Howes,  1  Beav. 

aideration,  the  answer  denied  that  it  197. 

was  without  consideration,  and  pro-  60.  Howes  v.  Howes,  1  Beav.  197. 

ceeded  to  set  forth  what  the  consid-  i 

487 


§  312  Dissolution. 

But  in  this  country  exceptions  to  an  answer,  though  not  disposed 
of  are  not  a  bar  to  the  dissolution  of  an  injunction  upon  the 
denials  of  the  answer,  if  some  of  such  denials  fully  deny  the  equity 
upon  which  the  injunction  was  based,  though  other  of  the  denials 
were  not  responsive  to  the  bill,  and  as  to  them  the  exceptions  were 
well  taken.70  And  the  exceptions  to  the  answer,  as  being  irre- 
sponsive, evasive  and  insufficient,  may  be  considered  upon  the 
hearing  of  the  motion  to  dissolve.71 

§  312.  Answers  not  denying  admit;  evasive  answers. — On  a 

motion  to  dissolve  an  injunction  on  bill  and  answer,  the  statements 
of  the  bill  are  to  be  received  as  true,  so  far  as  they  are  not  denied 
by  the  answer,  and  the  answer  will  be  available  only  so  far  as  it 
is  responsive  to  the  bill.72  But  where  there  are  several  defendants, 
having  a  common  defense,  and  some  of  them  have  answered,  deny- 
ing fully  and  positively  all  the  allegations  of  the  bill,  the  bill  is 
not  to  be  taken  pro  confesso  as  to  the  defendants  who  have  not 
answered.73  And  an  evasive  and  equivocal  answer  will  be  strongly 
construed  against  the  defendant.74    And  an  answer  is  not  sufficient. 

70.  Mitchell  v.  Mitchell,  20  N.  J.  tween  the  English  common  injunction. 
Eq.  234;   Indian  Riv.  Steamboat  Co.  which  was  granted  of  course  on  cer 
v.  East  Coast  Trans.  Co.,  28  Fla.  387,  tain  default  of  the  respondent,  and  a 
432     10    So.    480,    29    Am.    St.    Rep.  special  injunction   (like  the  present). 
25g.  granted    on    special    application    and 

71.  Salmon  v.  Claggett,  3  Bland,  oath.  Poor  v.  Carleton,  3  Sumn.  73/ ~ 
Ch.  (Md.)  125,  131.  In  Bradford  v.  72.  Hooker  v.  Austin,  41  Miss. 
Peckham,  9  R.  I.  250,  the  court  says :  717;  Alexander  v.  Ghiselin,  5  Gill 
"For  the  purposes  of  this  motion  to  (Md.),  138;  Columbus,  etc.,  R.  Co. 
dissolve,  the  answer  is  considered  as  v.  Witherow,  82  Ala.  190,  194;  Young 
merely  an  affidavit,  and  the  complain-  v.  Grundy,  6  Cranch,  51. 

ant  may  in  proper  cases  offer  counter  73.  Walsh  v.  Smyth.  3  Bland,  Ch. 

affidavits;   and  he  may  also,  by  his  (Md.)   9,  16. 

exceptions,  or  verbally,  argue  as  to  74.  Forney  v.  Calhoun  County,  84 

the  insufficiency  of  the  answer,  and  Ala.  215,  4  So.   153,  per  SomerviUe. 

both  the  answer  and  exceptions  must  J. :      "  The  court  refused  to  dissolve 

be  considered,  as  far  as  is  necessary  the  injunction  on  the  denials  of  the 

to  decide  the  question  of  continuing  answer,     which     are     equivocal     and 

the    injunction.      The   apparent   con-  evasive  in  their  nature.     The  defend 

flict  of   practice  as  to  dissolving  in-  ant's  conduct  is  significant  in  peremp 

junctions  on  filing  an  answer  arises,  torily  declining  to  answer  the  inter 

we  think,  from  not  distinguishing  be-  rogatories  to  the  bill,  which  seek  to 

488 


Dissolution. 


313 


if  it  merely  denies  an  inference,  instead  of  denying  the  facts  them- 
selves, as  alleged  in  the  bill.75  The  general  rale  that  an  injunction 
will  not  be  dissolved  on  motion,  where  the  facts  alleged  in  the 
petition  are  not  denied  by  answer,76  does  not,  however,  apply  where 
the  issues  raised  by  the  motion  to  dissolve  are  not  of  fact,  but  are 
all  of  law;  as,  for  instance,  where  the  only  issue  is  as  to  the 
validity  of  a  statute.77  But  denials  of  legal  conclusions,  and  not 
the  facts  stated  in  the  bill,  can  avail  nothing.78 

§  313.  Answers  admitting  and  then  avoiding  by  new  defense. 
— Where  the  defendant,  in  his  answer  to  an  injunction  bill,  admits 
the  equity  of  the  bill  but  sets  up  new  matter  of  defense  on  which 
he  relies,  by  way  of  avoidance,  the  injunction  will  not  be  dissolved 
on  motion,  but  continued  until  the  hearing.'9     Thus,  where  the. 


sift  his  conscience  as  to  his  alleged 
silence  when  standing  by  and  witness- 
ing the  construction  of  the  court 
house  upon  the  land  which  he  admits 
in  his  answer  he  had  consented  to 
dedicate  to  such  uses,  upon  a  condi- 
tion which  was  of  a  nature  easily  to 
be  waived  by  such  silence.  It  must 
be  presumed  that  his  answers,  if  un- 
equivocally made,  would  have  been 
conclusive  against  him  as  to  this 
matter  of  estoppel,  so  clearly  charged 
in  the  bill."  And  see  Woodruff  v.  KSt- 
ter,  26  N.  J.  Eq.  87 ;  Gibby  v.  Hall,  27 
N.  J.  Eq.  282;  Large  v.  Ditmars,  27 
N.  J.  Eq.  283 ;  Louisville  N.  R.  Co.  v. 
Philyaw,  94  Ala.  463,  10  So.  83. 

75.  Teasey  v.  Baker,  19  N.  J.  Eq.  61. 

76.  Peatross  v.  McLaughlin.  6 
Gratt.   (Va.)    64. 

77.  Burlington,  C.  R.  ft  N.  Ry.  Co. 
v.  Dey,  82  Iowa,  312,  48  N.  W.  98; 
Reeves  v.  Cooper,  12  N.  J.  Eq.  223. 

78.  Columbus  &  Western  R.  Co.  v. 
Witherow,  82  Ala.  190,  3  So.  23. 

79.  United  States. — Robinson  v. 
Cathcart,  Fed.  Cas.  No.  11946.  2 
Cranch  C.  C.  590. 


Alabama. — Jackson  v.  Jackson,  84 
Ala.  343,  4  So.  174;  Columbus  &  W. 
R.  Co.  v.  Witherow,  82  Ala.  190,  3 
So.  23;  Farris  v.  Houston,  78  Ala. 
250. 

Florida. — Indian  River  Steamboat 
Co.  v.  East  Coast  Tr.  Co.,  28  Fla.  387, 
10  So.  480,  29  Am.  St.  Rep.  258; 
Yonge  v.  McCormick,  6  Fla.  368,  63 
Am.  Dec.  214. 

Georgia. — Hargraves  v.  Jones,  27 
Ga.  233;  Moore  v.  Ferrell,  1  Ga.  7. 

Iowa. — Huskins  v.  Mcllvoy,  62 
Iowa,  508,  17  N.  W.  470. 

Maryland. — Hutchins  v.  Hope.  12 
Gill  ft  J.  244;  Chesapeake  &  O.  C 
Co.  v.  Baltimore  &  O.  R.  Co.,  4  Gill 
ft  J.  1. 

Mississippi. — Hooker  v.  Austin,  41 
Miss.  717. 

New  Jersey. — Vreeland  v.  New  Jer 
sey  Stone  Co.,  25  N.  J.  Eq.  140 ;  Arm- 
strong v.  Potts,  23  N.  J.  Eq.  92 ;  Van 
Syckel  v.  Emery,  18  N.  J.  Eq.  387. 

New  York. — Minturn  v.  Seymour,  4 
Johns.  Ch.  498;  Simson  v.  Hart,  14 
Johns.  63. 

North   Carolina. — Carter   v.    Hoke, 


489 


§313 


Dissolution. 


answer  admits  the  contract  in  issue,  but  denies  the  correctness  of 
plaintiff's  construction  of  it,  this  is  not  such  a  denial  as,  per  se, 
entitles  defendant  to  a  dissolution  of  an  injunction.80  And  the  rule 
above  expressed  always  prevailed  in  Maryland,  and  in  New  York, 
under  her  old  chancery  practice.81 


64  N.  C.  348;  Russ  v.  Gulick,  64  N. 
C.  301. 

Pennsylvania. — Appeal  of  Luburg, 
17  Atl.  245   23  Wkly.  Notes  Cas.  454. 

West  Virginia. — Noyes  v.  Vickers, 
39  W.  Va.  30,  19  S.  E.  429. 

See  §  309  herein. 

80.  Hughes  v.  Tinsley,  80  Va.  259. 

81.  Salmon  v.  Clagett,  3  Bland,  Ch. 
(Md.)  125,  162,  per  Bland,  Ch.:  "In 
one  case  reported  among  the  English 
adjudications  it  is  laid  down  as  a 
general  rule,  that  where  a  plain 
equity  set  forth  by  the  bill  is  admit- 
ted by  the  answer,  but  endeavored  to 
be  avoided  by  another  fact,  the  in- 
junction shall  always  be  continued  to 
the  hearing.  Allen  v.  Crabcroft,  Bar- 
nardiston  Ch.  373.  This  unquestion- 
ably, is  the  rule  by  which  this  court 
is  governed  on  a  motion  to  dissolve, 
made  on  the  coming  in  of  the  answer. 
It  appears  to  me  to  be  according  to 
the  reason  of  the  thing;  Minturn  v. 
Seymour,  4  Johns.  Ch.  497;  and  I 
am  much  inclined  to  believe,  that  this 
very  case  has  been  mainly  instru- 
mental in  establishing  that  rule  in 
this  court.  But  it  is  not  mentioned 
in  any  English  abridgment,  digest, 
compilation,  or  book,  other  than  that 
book  wherein  it  is  reported,  which 
Lord  Mansfield  absolutely  forbid  be- 
ing cited,  declaring  that  there  was 
no  one  case  in  it  which  was  right 
throughout.  Zouch  v.  Woolston,  2 
Burr.  1142,  n.;  Boardman  v.  Jackson, 
2  Ball  &  Bea.  386.  Hence  there  is 
reason  to  believe,  that  although  this 
case     must     be     admitted    as     right 


throughout  here,  it  may  not  be 
deemed  so  in  England.  Williams  v. 
Hall,  1  Bland,  193  n.  In  this  court 
the  question  presented,  on  a  motion 
to  dissolve  on  the  coming  in  of  the 
answer,  is  not  one  which  always  or 
necessarily  involves  the  merits  of  the 
whole  case,  as  set  forth  in  the  bill; 
it  may  be,  and  not  unfrequently  is, 
much  narrower,  because  this  court 
recognizes  the  distinctions  between 
the  case  on  which  the  injunction 
rests,  the  material  head  of  equity 
which  entitles  the  plaintiff  to  an  in- 
junction, 1  Fowl  Exch.  Pr.  226.  and 
that  which  forms  the  whole  founda- 
tion of  his  prayer  for  relief,  which 
although  often  are  not  necessarily  one 
and  the  same  case;  and  therefore,  this 
question,  on  a  motion  to  dissolve, 
properly  extends  only  to  the  equitable 
grounds  of  the  injunction  and  no  fur- 
ther. Doe  v.  Roe,  1  Hopkins,  276.  If 
the  answer  expressly  denies  all  the 
facts  stated  in  the  bill,  or  such  a  ma- 
terial part  of  them  as  leaves  not 
enough  to  furnish  an  equitable  foun- 
dation for  the  injunction,  it  must  be 
dissolved.  If,  on  the  other  hand,  the 
defendant  does  not  deny,  or  omits  to 
respond  to  those  facts  which  consti- 
tutes the  case  on  which  the  injunc- 
tion rests,  it  must  be  continued. 
Hence,  no  matter,  advanced  by  way 
of  avoidance  in  the  answer,  is  to  have 
any  weight  on  a  motion  to  dissolve, 
any  more  than  if  it  had  been  adduced 
in  the  form  of  a  plea.  Such  matter 
in  either  shape,  if  sustained  by  proof, 
or  admitted  by  setting  the  case  down 


490 


Dissolution. 


§314 


§  314.  Qualified  answers ;  on  information  and  belief. An  in- 
junction will  not  be  dissolved,  on  the  defendant's  answer,  if  it 
does  not  directly  and  unqualifiedly  negative  the  allegations  of  the 
bill  or  complaint.82  Therefore,  where  the  material  allegations  of 
the  complaint  are  positive  and  direct,  and  made  and  verified  as 
within  the  personal  knowledge  of  the  affiant,  and  if  true,  entitle 
the  plaintiff  to  the  injunction  asked  for,  and  where  the  material 
allegations  of  the  answer  are  made  upon  information  and  belief 
only,  the  complaint  must  be  deemed  uncontroverted,  and  the  in- 


for  final  decision  on  bill  and  answer, 
may    be   a   sufficient   defense    at  the 
hearing,  but  it  cannot,  in  either  of 
those  modes,  be  shown  as  cause  for 
dissolving  the  injunction  on  an  inter- 
locutory motion  made  for  that  pur- 
pose.    Simson  v.  Hart,  14  Johns.  74; 
Skinner  v.  White,  17  Johns.  367.  The 
court,  on  such  a  motion,  gives  credit 
to  the  answer  only  so  far  as  it  is  re- 
sponsive  to    the   case  stated   by   the 
bill    on    which    the     injunction   was 
granted,    and   no    farther.      And    the 
confidence  it  had  reposed  in  the  bill 
will  not  be  shaken,  unless  it  is  fully 
answered,  and  its  truth  is  in  point  of 
fact   materially  denied.     An   answer 
should  always  be  sworn  to  by  the  re- 
spondent ;    for  it  is  only  the  answer 
of  him  who  swears  to  it,  although  it 
may    purport   to    be    the    answer    of 
others.     The  statement  or  denial  of 
facts    within     the     defendant's    own 
knowledge  should  be  made  distinctly 
and  positively;  or  at  least  as  much  so 
as  his  recollection  will  admit.    But  if 
the  defendant  be  charged  in  a  repre- 
sentative character,  such   as   that  of 
an  executor,  he  may  answer  on  his 
belief   and   show   such    pregnant   cir- 
cumstances as  the  foundation  of  that 
belief  as  to  induce  the  court  to  adopt 
and  act  upon  it."    Jones  v.  Magill,  1 
Bland  Ch.   (Md.)    177. 

82.  Powell  v.  Brown,  22  Ga.  275; 


Higbee  v.  Camden  &  A.  R.  Co.,  19  ST. 
J.  Eq.  276;  Everly  v.  Rice.  4  N.  J. 
Eq.  553. 

In  an  injunction  suit  by  one 
electric  light  company  against 
another,  the  bill  alleged  that  de- 
fendant was  about  to  erect  its  wire3 
along  the  streets  and  alleys  on  which 
complainant's  wires  were  located,  and 
to  place  them  in  such  close  proximity 
to  complainant's  wires  as  to  do  irre- 
parable injury  to  complainant,  and 
greatly  endanger  the  lives  of  its  ser- 
vants, and  it  was  held  that  the  an- 
swer, which  merely  denied  that  dan- 
ger would  ensue  "with  a  reasonably 
prudent  management  of  complainant's 
system  of  wires,"  was  insufficient  to 
authorize  a  dissolution  of  the  tem- 
porary injunction.  Consolidated  Elec- 
tric Light  Co.  v.  People's  Electric 
Light  &  Gas  Co.,  94  Ala.  373,  10  So. 
440,  the  court  said :  "  We  do  not 
think  the  specific  allegations  in  com- 
plainant's bill,  setting  forth  inter- 
ference, actual  and  threatened,  with 
its  previously  established  rights,  have 
been  sufficiently  answered  and  nega- 
tived by  the  defendant.  .  .  .  We 
therefore  hold  that  the  chancellor 
erred  in  dissolving  the  injunction  on 
the  denials  in  the  answer."  And  see 
Holdrege  v.  Gwynne,  18  N.  J.  Eq.  27; 
Society,  etc.,  v.  Low,  17  N.  J.  Eq.  20. 


491 


315 


Dissolution. 


junction  should  be  granted,  and  if  granted,  should  not  be  dissolved.*  - 
Denials  and  allegations,  merely  on  information  and  belief,  are 
not  sufficient  to  entitle  defendant  to  a  dissolution  of  an  injunction ; 
rhey  must  be  on  personal  knowledge,  or  supported  by  the  affidavit 
of  some  person  having  personal  knowledge.84  As  a  witness  would 
not  be  allowed,  on  the  trial  of  a  cause,  to  give  evidence  of  a  fact 
which  he  knows  only  from  information  derived  from  another,  or 
which  he  merely  believes  to  be  true,  so  such  information  ought  not 
to  be  put  into  the  form  of  an  answer  and  accepted  as  controverting 
the  positive  allegations  of  an  injunction  complaint.83  The  rule 
that  an  answer  on  information  and  belief  is  not  sufficient  is  held 
not  to  apply  where  the  complaint  is  on  information  and  belief.8* 

§  315.  Dissolution  on  answer. — An  injunction  will  not  be  dis- 
solved upon  an  answer  which,  while  denying  the  equity  of  the  bill 
in  terms,  leaves  in  doubt  how  much  of  the  answer  is  fact  and  how 
much  opinion.87  And  if  the  equity  of  the  bill  is  admitted,  the 
injunction  will  not  be  dissolved  on  new  matter  set  up  in  avoid- 


83.  United  States. — Nelson  v.  Rob- 
inson, Fed.  Cas.  No.  10114,  1  Hemp. 
464. 

Alabama. — Columbus  &  W.  R.  Co. 
v.  Witherow.  82  Ala.  190.  3  So.  23. 

California. — Porter  v.  Jennings,  89 
Cal.  440,  26  Pac.  965. 

Georgia. — Powell  v.  Brown.  22  Ga. 
275;  Coffee  v.  Newson,  8  Ga.  444. 

loica. — Sinnett  v.  Moles,  38  Iowa, 
25. 

Maryland. — Kent  v.  Richards,  3 
Md.  Ch.  392;  Doub  v.  Barnes,  4  Gill  1. 
New  Jersey. — Campbell  v.  Runyon, 
42  N.  J.  Eq.  483,  8  Atl.  298;  Irick  v. 
Black.  17  N.  J.  Eq.  190;  Morris  Canal 
&  B.  Co.  v.  Jersey  City,  11  N.  J.  Eq. 
13;  Everly  v.  Rice,  4  N.  J.  Eq.  553. 
New  York. — Rowe,  etc.,  R.  Co.  v. 
Rochester,  46  Hun,  149;  Attorney 
General  v.  Cohoes  Co.,  6  Paige.  133, 
29  Am.  Dee.  755;  Norton  v.  Woods, 


5  Paige,  249;  Ward  v.  Van  Bokkelen, 
1  Paige,  100. 

NorthCarolina. — Smith  v.  Harking, 
38  N.  C.  613,  49  Am.  Dec.  83. 

Wiscons-m. — Tainter  v.  Lucas,  29 
Wis.  375. 

84.  Farmer  v.  Calvert  Pub.  Co., 
1  Flipp,  228,  234;  Poor  v.  Carleton, 
3  Sumn.  70,  78;  United  States  v. 
Samperyae,  Hemp.  118;  Nelson  v. 
Robinson,  Hemp.  464;  Conover  v. 
Mers,  3  Fish.  Pat.  Cas.  386;  Colum- 
bus, etc.,  R.  Co.  v.  Witherow,  82  Ala. 
190. 

85.  Mowry  v.  Sanborn,  65  N.  Y. 
584. 

86.  Hogan  v.  Branch  Bank,  10 
Ala.  485;  Taintor  v.  Lucas,  29  Wis. 
375.  See  Calhoun  v.  Cozens,  3  Ala. 
498. 

87.  Ladies'  Benev.  Soe'y  v.  Soci- 
ety, 2  Tenn.  Ch.  77. 


492 


Dissolution.  §  31 6 

ance,88  and  will  not  be  dissolved  for  want  of  equity  on  the  face  of 
ihe  bill,  when  a  case  proper  for  equitable  relief  is  disclosed,  though 
defectively  stated.89  Upon  a  motion  to  dissolve  an  injunction,  on 
l he  coming  in  of  an  answer,  it  is  neither  necessary  or  proper  to 
decide  the  case  on  its  merits,  especially  where  the  merits  turn  on 
grave  questions  of  law  arising  on  conceded  facts.90  If  the  court 
can  see  that  there  is  a  substantial  question  to  be  decided,  it  should 
continue  the  injunction  and  preserve  the  status  and  property  until 
such  question  can  be  regularly  disposed  of  at  the  trial.91  The  dis- 
solution of  an  injunction,  like  the  granting,  is  largely  a  matter  of 
discretion,  and  one  of  the  circumstances  which  controls  the  discre- 
tion is  the  probability  that  a  dissolution  would  result  in  greater 
injury  than  its  continuance  to  the  hearing.92  A  still  stronger  cir- 
cumstance which  should  militate  against  the  dissolution  of  an 
injunction  in  the  exercise  of  discretion,  arises  where  the  effect  of 
the  dissolution  would  be  to  place  the  property  in  controversy  be- 
yond the  control  of  the  court  in  which  the  action  is  pending,  and 
would  amount  to  a  complete  denial  of  the  relief  sought  by  the  bill.93 

§  316.  Dissolution  on  answer  though  bill  waive  oath. — Though 
the  bill  waives  an  answer  on  oath,  the  defendant  may  swear  to  his 

88.  Speak  v.  Ransom,  2  Tenn.  Ch.  Walk.  Ch.   (Mich.)  90.    By  the  chan- 

2io.  cellor    in    Owen   v.    Brien,    2    Cooper 

"  89.   Love  v.  Allison,  2  Tenn.   Ch.  Ch.    (Tenn.)    295,   299:       "The   bill 

jl^  seeks  to  have  the  execution  of  a  writ 

SO.    Owen   v.   Brien,   2    Tenn.    Ch.  of    possession    perpetually    enjoined. 

295  If,  now,  I  dissolve  the  injunction,  the 

91.  Great  Western  R.  Co.  v.  Birm-  defendants  execute  the  writ  and  the 
ingham  R.  Co.,  2  Phillips  Ch.  597,  property  passes  beyond  the  control 
602;  Glascott  v.  Lang,  3  Myl.  &  C.  of  the  court.  If  I  should  eventually 
455;  Shrewsbury  v.  Shrewsbury  R.  hold  that  the  complainant  is  entitled 
Co.,  1  Sim.  N.  S.  410,  426;  Ballard  to  a  perpetual  injunction,  I  can  no 
v.  Fuller,  32  Barb.  68.  longer  give  him  that  relief,  for  the 

92.  Chetwood  v.  Brittan,  1  Green  writ  has  been  executed  and  a  decree 
Ch.  (N.  J.)  438;  Firmstone  v.  De  for  a  perpetual  injunction  would  be 
Camp,  2  C.  E.  Green  Ch.  (N.  J.)  idle  words.  I  cannot  dispossess  de- 
309;  New  v.  Bame,  10  Paige  (N.  fendants  for  they  have  acquired  pos- 
Y  \     502.  session,  not  under  the  orders  of  this 

93.  Hoagland  v.  Titus,  1  McCart.  court,  but  by  a  writ  from  another 
81 ;     Attorney-General     v.     Oakland,  court,  and,  moreover,  there  is  no  such 

493 


§  317  Dissolution. 

answer  for  the  purpose  of  obtaining  a  dissolution  of  the  injunction, 
under  general  chancery  rules.9*  And  in  such  a  case,  as  in  others, 
the  injunction  will  be  dissolved  upon  the  coming  in  of  an  answer 
denying  the  whole  equity  of  the  bill,  unless  the  allegations  in  the  bill 
on  which  the  right  to  injunction  depends,  are  verified  by  the  affi- 
davit of  a  credible  and  disinterested  witness,  and  whether  the  bill 
is  sworn  to  by  one  or  more  complainants,  is  immaterial,  as  defend- 
ant's answer  is  entitled  to  the  same  credit  as  the  bill.95  An  answer 
must  be  sworn  to  in  order  to  be  available  to  defendant  on  a  motion 
to  dissolve,  though  the  bill  prays  for  answer  without  oath.9S  Before 
the  adoption  of  the  amendment  to  the  forty-first  rule  in  equity,  it 
was  a  rule  under  the  Federal  equity  practice,  that  where  the 
answer  was  under  oath  and  denied  all  the  equities  of  the  bill,  the 
injunction  should  be  dissolved ;  but  where  the  oath  of  the  defendant 
is  waived  in  the  bill,  his  answer,  since  the  amendment,  can  be  used 
only  with  the  probative  force  of  an  affidavit.97  Where  the  com- 
plainant waives  an  answer  on  oath  and  relies  upon  the  affidavits  of 
third  persons  annexed  to  the  bill  to  sustain  an  injunction,  in  oppo- 
sition to  the  defendant's  answer  on  oath,  denying  the  equity  of  the 
bill,  the  defendant,  upon  an  application  to  dissolve  the  injunction, 
may  also  read  the  affidavits  of  third  persons  in  support  of  his 
answer.98 

§  317.     Evidence  admissible  on  motion  to  dissolve. — On  the 

hearing  to  dissolve  a  temporary  injunction,  on  a  motion  which 
was  silent  concerning  the  evidence  to  be  offered  at  the  hearing, 
the  admission  of  oral  evidence  was  not  error,  after  both  parties 

prayer   in  the   bill.      The   court   has  affidavits  annexed  to  the  bill  for  the 

done  irreparable  wrong  which  it  can-  purpose  of  contradicting  the  positive 

not  redress."  answer    of    the    defendant    on    oath. 

94.  Lytton  v.   Steward,  2   Cooper  Haight  v.  Case,  4  Paige  (N.  Y.),  525. 
Ch.    (Tenn.)    586.  96.  Walker  v.  Hill,  21   N.  J.  Eq. 

95.  Manchester  v.  Dey,  6  Paige  191;  Dougrey  v.  Topping,  4  Paige 
(N.  Y.),  295.  If  an  answer  on  oath  (N.  Y.),  94.  See  preceding  section, 
has  not  been  waived  as  to  one  of  the  97.  United  States  v.  Working- 
defendants,  the  complainant  upon  an  men's,  etc.,  Council,  54  Fed.  994. 
application  to  dissolve  the  injunc-  98.  Haight  v.  Case,  4  Paige  (N. 
tion,  cannot  be  permitted  to  read  the  Y.),  525. 

494 


Dissolution.  §  318 

had  announced  themselves  ready  for  trial."  In  an  action  by  a  tax- 
payer to  enjoin  the  erection  of  a  bridge  by  a  town,  which  it  had 
been  authorized  to  build  by  the  county  board,  plaintiff  charged 
that  the  whole  proceeding  was  a  conspiracy  to  divert  the  public 
money  to  the  private  purpose  of  draining  certain  swamp  lands. 
It  was  held  that  a  finding  of  the  court  in  another  action  that  no 
such  conspiracy  existed,  though  not  conclusive  on  plaintiff,  was 
properly  taken  into  consideration  by  the  court  as  bearing  on  the 
question  whether  an  order  dissolving  a  temporary  injunction  in 
the  pending  action  should  be  reversed.1  On  a  rule  to  dissolve  an 
injunction,  it  is  within  the  discretion  of  the  court  to  refer  to  the 
merits  those  issues  which  require  evidence  for  their  trial.2  In  a 
suit  to  restrain  an  action  at  law  by  reversioners,  for  waste  in  cut- 
ting timber,  a  justification  of  the  waste,  not  alleged  or  set  up  in 
the  bill,  will  be  of  no  avail  on  a  motion  to  dissolve  the  injunction. 
The  right  to  the  injunction  must  appear  by  the  allegations  in  the 
bill.3  Where  a  motion  to  dissolve  is  founded  on  bill  and  answer, 
it  is  considered  to  be  going  too  far  into  the  merits  to  use  on  the 
motion  testimony  taken  in  the  cause.4  But  an  injunction  granted 
on  notice  and  after  hearing  on  affidavits  on  both  sides,  especially 
upon  the  affidavits  of  the  defendants  themselves,  going  to  the 
merits,  will  not  be  dissolved  on  the  mere  answer  of  the  defend- 
ants.5 

§  318.  Dissolution  of  injunction  on  bill  of  discovery. — As  the 
only  object  of  an  injunction  granted  upon  a  mere  bill  of  discovery 
to  aid  a  defense  at  law  is  to  obtain  the  defendant's  answer  on  oath 
to  be  used  on  the  trial,  it  is  a  matter  of  course  to  dissolve  the  in- 
junction as  soon  as  the  answer  of  the  defendant  is  perfected, 
whether  he  admits  or  denies  the  facts  alleged  in  the  bill.6     And 

99.   Olson   v.   City  of  Topeka,   42  3.  Van  Syckel  v.  Emery,  18  N.  J. 

Kan.  709,  21  Pac.  219.  Eq.  387. 

1    Barker  v.  Town  of  Oswegatchie,  4.  Brush  v.  Vandenbergh,   1   Edw. 

62    Hun    (N.    Y.).     208,     16    N.    Y.  Ch.    (N.  Y.)    21. 

Supp    727.  5-  Sinnickson  v.  Johnson,  3  N.  J. 

2.  Cottam  v.  Currie,  42  La.  Ann.  Eq.  374. 

875    8  So    600.  6.  King  v.  Clark,  3  Paige  (N.  Y.), 

76. 

495 


§  319  Dissolution. 

in  such  a  case  the  defendant  will  not  be  entitled  to  costs  if  he 
admits  the  facts  stated  in  the  bill,  and  had  before  refused,  without 
any  sufficient  excuse,  to  give  the  desired  information.7  It  is  no 
objection  to  an  application  to  dissolve  an  injunction  upon  a  bill 
of  discovery  in  aid  of  a  defense  at  law,  that  the  complainant  has 
excepted  to  the  answer  for  impertinence  merely ;  to  entitle  him  to 
retain  the  injunction  until  his  exceptions  have  been  disposed  of 
by  the  court,  he  must  show  that  some  injury  will  result  to  him 
from  the  impertinent  matter.8  The  general  rule  before  stated 
does  not  apply  where  the  bill  is  filed  for  other  relief,  and  the  dis- 
covery is  merely  incidental.9 

§  319.  Dissolving  injunction  on  ground  of  adequate  legal 
remedy. — Where  a  bill  for  an  injunction  is  dismissed  on  demurrer, 
on  the  ground  that  the  complainant  had  an  adequate  remedy  at 
law,  a  temporary  injunction  may  be  dissolved.  This  rule  was 
applied  where  a  second  condemnation  proceeding  was  enjoined 
on  the  ground  that  the  same  land  had  been  previously  condemned, 
as  the  objection  could  have  been  taken  by  motion  in  the  second 
proceedings.10    The  rule  was  also  applied  and  the  injunction  dis- 

On  a  bill  for  a  discovery  in  aid  of  Ch.     (N.     Y.)      503;      Weymouth    v. 

a  defense  at  law  an  injunction  was  Boyer,   1   Ves.   Jr.   416. 

granted   restraining  further   proceed-  8.  Jewett  v.  Belden,  11  Paige    (N. 

ings  in  the  action  at  law.     The  in-  Y.),  618. 

junction  was  dissolved  upon   defend-  9.    Henwood    v.    Jarvis,    27    N.    J. 

ant's  answer  denying  the  allegations  Eq.  247. 

of  the  bill  but  making  no  discovery.  10.  Chicago,  R.  I.  &  P.  Ry.  Co.  v. 

Grafton   v.    Brady,   7    N.   J.   Eq.   79.  Chicago,   143  111.  641,  32  N.  E.   178, 

And  see  Jones  v.  Sherwood,  6  N.  J.  per  Baker,  J. :     "  We  think,  however, 

Eq.  210.  that    the    Superior     Court    properly 

A      complainant      in      a     bill  sustained    the   demurrer    to   the   bill, 

charging    frand    may    make   every  and  dissolved  the  temporary   injunc- 

one  a  party  who  is  a  participator  in  tion,    and    dismissed    the   suit.      The 

the  fraud;   he  has  a  right  to  do  this  appellant    had    an    adequate    remedy 

for  the  purpose  of  discovery;  and  the  at   law,   and   the   case   stated   in   the 

general  rule  is  that  he  has  a  right  to  bill  did  not  call  for  the  interposition 

hold  his   injunction  until  he   obtains  of  a  court  of  equity,  or  show  grounds 

that  discovery.     Robinson    v.    Davis,  that  would  give  a  court  of  chancery 

11  N.  J.  Eq.  302.  jurisdiction.      In   the   matter   of   the 

7.   Burnett    v.     Sanders,   4   Johns.  petition  exhibited  by  the  city  in  the 

496 


Dissolution. 


§320 


solved,  where  a  judgment  debtor  who  had  obtained  an  injunction 
against  the  collection  of  a  judgment  on  the  ground  of  payment, 
could  by  proper  diligence  have  made  his  defense  in  the  action  at, 
law.11  Where  it  appears  by  the  bill  and  answer  that  the  com- 
plainant has  a  reasonably  adequate  remedy  at  law,  the  court  will 
exercise  its  discretion  to  dissolve  the  injunction.12 


§  320.  Motion  to  dissolve  for  want  of  jurisdiction. — A  motion 
to  dissolve  an  injunction  for  want  of  jurisdiction  in  the  court 
issuing  it  is  not  the  proper  remedy,  as  the  motion  can  only  be 
founded  on  want  of  equity  apparent  on  the  face  of  the  bill.15     A 


Circuit  Court  for  the  condemnation 
of  the  strip  of  land,  which  is  part  of 
the  right  of  way  of  appellant,  it  was 
not  competent,  under  the  statute,  for 
appellant  to  either  answer  or  plead 
to  the  petition,  and  the  only  question 
that  could  there  be  tried  by  a  jury 
was  the  question  of  damages.  But 
the  courts  of  the  State  which  are 
authorized  to  entertain  petitions  for 
the  exercise  of  the  right  of  eminent 
domain  are  clothed  with  ample  power 
to  prevent  any  abuses  of  the  right. 
Smith  v.  Railroad  Co.,  105  111.  511; 
Railroad  Co.  v.  Wiltse,  116  111.  449, 
fi  N.  E.  49.  In  said  attempted  con- 
demnation proceeding  in  the  Circuit 
Court  the  right  to  a  second  condem- 
nation of  the  strip  of  ground  for  the 
purposes  of  a  public  street  could 
readily  have  been  contested  by  a  pre- 
liminary motion,  and  submitted  to 
the  decision  of  the  court.  No  reason 
is  perceived  why  such  motion  could 
not  have  been  entered  and  supported 
by  affidavits  and  certified  copies  of 
the  judgment  of  condemnation  ren- 
dered in  the  Superior  Court,  and  of 
the  ordinances  of  the  town  of  Lake 
upon  which  such  judgment  was 
based.  In  Railroad  Co.  v.  Dix,  109 
111.  237,  a  motion  to  dismiss  the  pe- 
tition was  entered,  and  affidavits  in 


support  of  such  motion  filed,  and  also 
counter  affidavits,  and  the  practice 
there  adopted  was  approved  by  this 
court.  See,  also,  Chicago  &  N.  W. 
R.  Co.  v.  Chicago  &  E.  R.  Co.,  112 
111.  589;  Railroad  Co.  v.  Wiltse, 
supra;  Ward  v.  Railroad  Co.,  119 
111.  287,  10  N.  E.  365;  Illinois  Cent. 
R.  Co.  v.  Chicago,  B.  &  N.  R.  Co., 
122  111.  473,  13  N.  E.  140;  Lake 
Shore  &  M.  S.  R.  Co.  v.  Chicago  & 
W.  I.  R.  Co.,  96  111.  125;  Peoria,  P. 
&  J.  R.  Co.  v.  Peoria  &  S.  R.  Co., 
66  111.  174;  Illinois  Cent.  R.  Co.  v. 
City  of  Chicago,  138  111.  453,  28  N. 
E.  740." 

11.  Harding  v.  Hawkins,  141  111. 
572,  31  N.  E.  307;  Morris  Canal  Co. 
v.  Dennis,  12  N.  J.  Eq.  249.  A  pre 
liminary  injunction  will  be  dissolved 
when  all  the  equities  of  the  bill  are 
denied  by  answer  under  oath,  or  when 
the  suit  is  to  enjoin  the  breach  of  a 
contract  which  could  not  be  specific- 
ally enforced,  and  for  breach  of 
which  remedy  at  law  is  adequate. 
Coburn  v.  Cedar  Valley  Land  &  Cat- 
tle Co.,  25  Fed.  791. 

12.  Van  Horn  v.  Talmage,  8  N. 
J.   Eq.   108. 

13.  East  &  West  R.  Co.  v.  East 
Tennessee,  etc.,  R.  Co.,  75  Ala.  275. 


497 


32 


§  321  Dissolution. 

notice  of  a  motion  to  dissolve  an  injunction  given  at  the  statutory 
time,  though  at  a  time  when  the  court  has  no  jurisdiction  of  the 
case,  is  sufficient  where  the  court  has  jurisdiction  when  the  motion 
is  made.14  An  injunction  granted  in  favor  of  an  appellant  pending 
an  appeal,  may  be  set  aside,  even  after  the  term  at  which  it  was 
granted,  if  the  court  had  not  jurisdiction  to  grant  it.15 

§  321.  Dismissing  bill  on  dissolution  of  injunction. — It  may 

be  stated  generally  that  where  an  injunction  is  dissolved  upon  the 
hearing  of  a  motion  for  its  dissolution  only,  the  bill  itself  should 
not  be  dismissed.16  So  if  a  bill,  which  seeks  other  relief  besides 
the  injunction,  shows  any  cause  of  action,  it  must  not  be  dismissed 
before  the  final  hearing,  though  the  injunction  have  been  dis- 
solved, because,  though  defective  in  form,  or  for  want  of  necessary 
parties,  the  plaintiff  may  amend  so  as  to  cure  the  defects  before 
the  case  comes  on  for  final  hearing.17  And  a  Code  provision  that, 
where  an  injunction  is  wholly  dissolved,  the  bill  shall  be  dismissed 
at  the  next  term,  applies  to  a  pure  bill  of  injunction,  and  not  to  a 
case  where  the  bill  prays  for  other  relief.  Where,  therefore,  a 
receiver  is  appointed  according  to  the  prayer  of  the  bill,  he  may 

14.  Younglove  v.  Steinman,  80  Missouri. — Home  Mut.  Ins.  Co.  v. 
Cal.  375,  22  Pac.   189.  Bauman,  14  Mo.  74. 

15.  Bullion  Beck  &  Champion  Texas. — Love  v.  Powell,  67  Tex. 
Min.  Co.  v.  Eureka  Hill  Min.  Co.,  5  15,  2  S.  W.  456;  Texas  Land  Co.  v. 
Utah,  182,  12  Pac.  660.  Turman,   53    Tex.    619;     Burnley  v. 

16.  Arkansas.— Johnston  v.   Alex-  Cook,  13  Tex.  586,  65  Am.  Dec.  79. 
ander,  6  Ark.  302.  Virginia.— Muller     v.     Bayly,     21 

Florida.— Indian    River    S.    Co.    v.  Gratt.   521;   Blow  v.  Taylor,  4  Hen. 

East  Coast  Transp.  Co.,  28  Fla.  387,  &.  M.  159. 

10  So.  480,  29  Am.  St.  Rep.  258.  West   Virginia. — Noyes  v.  Vickers. 

Illinois.— Brockway  v.   Rawley,  66  39  W.  Va.  30,  19  S.  E.  429. 

111.  99;   Hummert  v.  Schwab,  54  111.  Where  no  demurrer  or  sworn. 

142.  answer  is  filed  a  bill  cannot  be  dis- 

Indiana. — Gray      v.      Baldwin,      8  missed  on  hearing  of  motion  to  dis- 

Blackf.    164.  solve.      Welch    v.    Sheaffer,    29    Pa. 

Iowa. — Walters    v.    Fredericks,    11  Super.  Ct.  619. 

Iowa,   181.  17.   Pulliam   v.    Winston,   5   Leigh 

Maryland.— Kelly  v.  Baltimore,  53  (Va.),   324;     Hough    v.     Shreeve,    4 

Md.  134.  Munf.  (Va.)  490;  Singleton  V.Lewis. 

Mississippi. — Maury   v.   Smith,    46  6  Munf.   (Va.)   397. 
Miss.  81. 

498 


Dissolution.  §  322 

be  ordered,  at  a  time  subsequent  to  that  at  which  the  injunction 
previously  granted  was  dissolved,  to  collect  a  rent  bond  taken  by 
him  in  pursuance  of  the  order  of  the  court.18  And  where  the 
injunction  was  two-fold,  seeking  first  to  enjoin  defendant  from 
bringing  vexatious  actions  of  trespass;  and  second,  to  obtain  a 
decree  for  complainant  awarding  to  him  the  land  in  controversy,  it 
was  held  that  the  bill  could  not  be  dismissed  on  the  dissolution 
of  the  injunction.19  And  where  defendant  was  enjoined  from 
using  a  certain  dock,  and  the  bill  also  asked  that  plaintiff  be  de- 
creed entitled  to  the  undisturbed  possession  of  that  dock,  and  of 
certain  other  docks,  and  the  injunction  was  dissolved  on  defend- 
ant's answer,  it  was  held  to  be  error  to  dismiss  the  bill,  as  it  could 
not  be  said  that  no  other  than  the  injunctive  relief  was  sought.20 
But,  if  the  bill  is  wholly  without  merits,  it  is  decided  that  it 
should  fall  with  the  injunction,21  and  may  be  dismissed.22 

§  322.  Same  subject;  in  Texas. — When  the  temporary  injunc- 
tion is  dissolved,  on  the  filing  of  the  answer,  plaintiff  is  entitled 
to  a  trial  on  the  merits,  unless  he  expressly  waives  his  rights,  and 
it  is  error  to  dismiss,  although  he  makes  no  request  for  a  trial  on 
the  merits.23  There  would  seem  never  to  have  been  any  doubt  in 
Texas  that,  in  such  a  case  as  above  put,  and  where  the  bill  did 
not  show  a  want  of  equity,  it  would  be  error  to  dismiss  the  action 

18.  Adkins  v.  Edwards,  83  Va.  East  Coast  Co.,  28  Fla.  387,  10  So. 
300,  2  S.  E.  435.  480.  29  Am.  St.  Rep.  258. 

19.  Hough  v.  Shreeve,  4  Munf.  21.  Reed  v.  Campbell,  43  N.  J.  Eq. 
(Va.)  490.  In  Texas  Land  Co.  v.  406,  4  Atl.  433;  and  see  Domestic 
Turman,  53  Tex.  623,  the  court  says:  Tel.  Co.  v.  Metropolitan  Tel.  Co.,  39 
"The  petition,  independently  of  the  N.  J.  Eq.  160,  40  N.  J.  Eq.  287; 
relief  sought  by  the  injunction,  con-  Duffield  v.  Whitlock,  26  Wend.  (N. 
tained  substantially    the    allegations  Y.)   55. 

in  one  of   trespass   to   try   title.      In  22.  Gardt  v.   Brown,   113  111.  475, 

such  case,  if  an  injunction  has  been  55  Am.  Rep.  434;   Edwards  v.  Pope, 

obtained,  and  is  on  motion  dissolved,  4  111.  465;    Merriman    v.    Norman,  9 

it  is  error  thereupon  to  dismiss  the  Heisk.   (Tenn.)   269;  Mayse  v.  Biggs, 

petition,  but  it  should  be  continued  3   Head    (Tenn.),  36. 
over  for  hearing  on  the  merits."  23.  Love  v.  Powell,  67  Tex.   15,  2 

20.  Indian  River  Steamboat  Co.  v.  S.  W.  456. 

499 


S32; 


Dissolution. 


where  the  plaintiff  asked  for  a  trial  on  the  merits.24  But,  even  if 
he  did  not  ask  for  a  trial,  the  prevailing  doctrine  in  Texas  has 
been  that  it  was  error  to  dismiss  the  suit  on  dissolving  the  in- 
junction;25 though  the  contrary  doctrine  that  it  was  not  error  to 
dismiss  where  a  trial  was  not  asked  for,  has  had  the  support  of 
quite  a  line  of  decisions.26  When  an  injunction  is  dissolved  be- 
cause of  a  want  of  equity  in  the  injunction  petition,  and  the  in- 
junction is  the  sole  object  of  the  suit,  the  case  should  be  dismissed 
if  the  plaintiff  declines  to  amend.27 

§  323.  Dissolution  where  several  defendants. — The  general 
rule  is  that  an  injunction  against  several  defendants  jointly  impli- 
cated in  the  same  transaction  will  not  be  dissolved  until  all  the 
defendants  have  answered  denying  the  equities  of  the  bill;28  the 
rule  being  based  on  the  necessity  for  testing  the  personal  knowl- 
edge of  all  the  defendants  as  a  protection  to  the  rights  of  the 


24.  Washington  County  v.  Schulz, 
63    Tex.    32,    per    West,    J.:       "The 
judgment  recites  that  the   case  was 
heard   only    on    appellee's    motion    to 
dissolve  the  injunction;   and  on  that 
motion    being    sustained,    and    before 
any  further  action  had  been  had,  that 
the    appellant    at    once    demanded    a 
hearing  of  the  cause  on  the  merits. 
If   the   petition   contained   averments 
sufficient,  if  established  by  proof  on 
the  final  hearing,  to  entitle  appellant 
to  the  relief   sought,   or   if   it  could 
have  been  amended  so  as  to  state  a 
good  cause  of  action,  it  should  have 
been  retained,  when  he  asked  that  it 
be  done  to  give  the  appellant  an  op- 
portunity  of   proving   the   averments 
to  be  true,  and  thus  obtain  the  relief. 
The    following    cases     sustain    these 
views:      Hale   v.   McComas,   59   Tex. 
484;   Pullen  v.  Baker,  41   Tex.  420; 
Gaskins    v.    Peebles,    44    Tex.    390, 
Sims  v.  Redding,  20  Tex.  387;  Floyd 
v.    Turner,    23    Tex.    292;    Lively    v. 
Bristow,   12  Tex.    60;     Fulgham    v. 


Chevallier,  10  Tex.  518;  Baldridge 
v.  Cook,  27  Tex.  565;  Edrington  v. 
Allsbrooks,  21  Tex.  188;  Eccles  v. 
Daniels,  16  Tex.  137." 

25.  Pullen  v.  Baker,  41  Tex.  419; 
Fulgham  v.  Chevallier,  10  Tex.  518; 
Burnley  v.  Cook,  13  Tex.  586;  Dear- 
born v.  Phillips,  21  Tex.  449;  Texas 
Land  Co.  v.  Turman,  53  Tex.  623. 

26.  Gaskins  v.  Peebles,  44  Tex. 
390;  Sims  v.  Redding,  20  Tex.  386; 
Lively  v.  Bristow,  12  Tex.  60;  Clegg 
v.  Darragh,  63  Tex.  357;  Baldridge 
v.  Cook,  27  Tex.  565.  These  five  cases 
are  overruled  in  Love  v.  Powell,  67 
Tex.  15,  2  S.  W.  456. 

27.  Love  v.  Powell,  67  Tex.  15,  16, 
2  S.  W.  456;  Hale  v.  McComas,  59 
Tex.  484;  Corsicana  v.  White,  57 
Tex.  382;  Pryor  v.  Emerson,  22  Tex. 
162;  Cook  v.  De  La  Garza,  13  Tex. 
431;    Gibson  v.   Moore,  22  Tex.  611. 

28.  United  States. — Robinson  v. 
Cathcart,  Fed.  Cas.  No.  11946,  2 
Cranch  C.  C.  590. 


500 


Dissolution. 


323 


complainant.29  So  an  injunction  will  not  be  dissolved  on  an 
answer  of  one  defendant  which  denies  all  the  equities  of  the  bill, 
if  the  answers  of  the  other  defendants  admit  them.30  And  an 
injunction  granted  upon  an  allegation  of  the  fraudulent  conceal- 
ment of  a  written  agreement  between  the  defendant  and  another 
defendant,  in  an  action  at  law,  will  not  be  dissolved  upon  the 
answer  of  one  defendant  and  the  affidavit  of  the  other,  without  the 
answer  of  both  and  the  production  of  the  agreement.31  And  gen- 
erally one  of  several  defendants,  who  has  answered,  will  not  be 
heard  to  move  for  a  dissolution,  while  other  defendants  have  not. 
answered,  unless  he  has  ground  to  impute  to  plaintiff  unreasonable 
neglect  in  the  prosecution  of  the  injunction  suit.32    Where  a  bill 


Arkansas. — Fowler  v.  Williams,  20 
Ark.  641;  Johnson  v.  Alexander,  6 
Ark.  302. 

Illinois. — Reynolds  v.  Mitchell,  1 
111.   135. 

Maryland. — Jones  v.  Magill,  1 
Bland,  177.  See  Heck  v.  Vollmer,  29 
Md.  507. 

New  Jersey. — Wisham  v.  Lippin- 
cott,  9  N.  J.  Eq.  353;  Smith  v. 
Loomis,  5  N.  J.  Eq.  60;  Price  v. 
Clevenger,  3  N.  J.  Eq.  207. 

New  York. — Noble  v.  Wilson,  1 
Paige,  164.  See  McVickar  v.  Wol- 
cott,   4  Johns.  510. 

North  Carolina. — Councill  v.  Wal- 
ton, 39  N.  C.   15-5. 

Virginia. — Baltimore  &  O.  R.  Co. 
v.   Wheeling,   13  Grat.  40. 

"  In  such  cases  the  exceptions  to 
the  answer  of  one  of  the  defendants 
submitted  to  is  a  good  answer  to  a 
motion  to  dissolve  the  injunction,  if 
those  exceptions  go  to  the  merits  of 
the  case  on  which  the  injunction 
rests."  Noble  v.  Wilson,  1  Paige  (N. 
Y.),  164.     Per  the  Chancellor. 

29.  Douglass  v.  County  Commis- 
sioners, Baker  County,  23  Fla.  419, 
431,  2  So.  776;  Coleman  v.  Gage, 
Clarke  Ch.     (N.    Y.)     295.     See  also 


Jewett  v.  Bowman,  27  N.  J.  Eq.  171 ; 
Scull  v.  Reeves,  3  N.  J.  Eq.  85; 
Wisham  v.  Lippincott,  9  N.  J.  Eq. 
353. 

.30.  Zabriskie  v.  Vreeland,  1  Beas. 
(N.  J.)  179.  See  Hooker  v.  Austin, 
41  Miss.  717. 

31.  Prickett  v.  Tuller,  29  N.  J. 
Eq.  154. 

32.  Jones  v.  Magill,  1  Bland,  Ch. 
(Md.)  177,  200,  per  Bland,  Ch.: 
"  These  defendants  who  now  ask  for 
a  dissolution  of  this  injunction  have 
not  yet,  by  a  rule  for  further  proceed- 
ings required  the  plaintiff  to  prose 
cute  her  suit  without  delay,  and 
consequently  they  cannot  justly  com 
plain  of  the  injunction  being  con- 
tinued until  the  filing  of  the  answer 
of  the  defendant  Gittings,  which  it 
is  evident  may  bring  into  the  case 
an  acknowledgment  of  facts  that 
may  go  far  to  sustain  if  not  entirely 
to  support  the  equity  upon  which  the 
injunction  rests.  Hence,  as  there  is 
now  no  ground  to  impute  to  the 
plaintiff  .any  unreasonable  neglect 
in  the  prosecution  of  her  suit;  and 
the  answer  of  a  defendant  under 
whom  this  creditor,  Magill,  claims, 
who,  it  is  admitted,  can  speak  from 


501 


§324 


Dissolution. 


makes  a  case  for  an  injunction  its  material  allegations  must  be 
denied  by  answer  before  the  injunction  will  be  dissolved.  If  the 
answering  defendants  are  unable  from  want  of  knowledge  posi- 
tively to  deny  the  material  allegations  of  the  bill,  the  injunction 
must  be  retained,  and  the  fact  that  the  only  defendant  who  can 
answer  such  allegations  is  absent  from  the  State,  is  no  ground  of 
exception  to  the  rule.33  And  on  a  motion  to  dissolve  a  defendant 
cannot  object  that  another  person  not  a  party  to  the  suit  has  been 
enjoined.34 

§  324.  Same  subject;  qualifications  and  exceptions. — A  quali- 
fication of  the  general  rule  is  that  the  plaintiff  must  have  taken  the 
requisite  steps  to  compel  an  answer  from  all  the  defendants.35  So, 
also,  where  the  defendants  on  whom  the  real  gravamen  rests  have 
fully  answered,  they  may  apply  to  have  the  injunction  dissolved 
as  to  them,  though  a  co-defendant  has  not  put  in  his  answer;36 


Ms  own  knowledge  of  some  of  the 
material  facts  charged  in  the  bill, 
lias  not  yet  been  put  in;  the  hearing 
of  the  motion  to  dissolve  cannot  be 
taken  up  until  his  answer  has  been 
brought  in,  or  until  it  may  be  in- 
ferred from  the  plaintiff's  laches  in 
not  endeavoring  to  have  it  brought 
in  that  it  would  contain  nothing 
likely  to  sustain  her  case;  or  until 
such  implied  notice  of  the  bill  has 
been  given  to  the  non-responding  de- 
fendant, if  he  be  not  resident  within 
the  State,  as  will  enable  the  court  to 
proceed  without  his  answer."  Paul 
v.  Nixon,  1  Bland.  Ch.  (Md.)  200, 
note    (r). 

Where  the  complainants  have 
taken  the  necessary  steps  to  ex- 
pedite their  cause,  and  procure 
the  answer  of  all  the  defendants,  an 
injunction  will  not  be  dissolved  until 
the  defendant  upon  whom  the  grava- 
men of  the  charge  is  made,  has  an- 
Bwered,  and  if  all  the  defendants  are 
implicated    in    the    charge,   not   until 


all  have  answered.     Robinson  v.  Da- 
vis,   11   N.   J.   Eq.   302. 

33.  Lines  v.  Spear,  8  N.  J.  Eq.  154, 
and  see  Council  1  v.  Walton,  4  Ired. 
Eq.   (N.  C.)    155. 

34.  Tradesman's  Bank  v.  Merritt, 
1  Paige   (N.  Y.),  302. 

On  a  motion  to  dissolve  an  in- 
junction, the  separate  answer  of 
a  co-defendant,  not  included  in  the 
injunction,  cannot  be  regarded.  Van 
Syckel  v.  Emery,  18  N.  J.  Eq.  387. 

35.  See  Stoutenburg  v.  Peck,  4  N. 
J.  Eq.  446 ;  Ward  v.  Van  Bokkelen,  1 
Paige  (N.  Y.).  100;  Shonk  v. 
Knight,  12  W.  Va.  667. 

36.  Arkansas. — Fowler  v.  Wil- 
liams, 20  Ark.  641. 

Maryland.— Heck  v.  Vollncr,  29 
Md.  507. 

Missouri. — See  Gast  Bank  Note  & 
L.  Co.  v.  Fennimore  Ass'n,  79  Mo. 
App.  612. 

New  Jersey. — Adams  v.  Hudson 
County  Bank,  10  N.  J.  Eq.  535,  64 
Am.  Dec.  469;  Price  v.  Clevenger,  3 
N.  J.  Eq.  207. 


.-,02 


Dissolution.  §  324 

especially  if  he  is  a  non-resident  and  cannot  be  compelled  to 
answer.37  Thus  where  four  of  the  members  of  a  board  of  county 
commissioners  are  defendants  to  a  suit  in  chancery,  and  two  of 
them,  having  answered,  move  to  dissolve  the  injunction,  and  the 
motion  is  heard  without  objection  from  the  complainants  as  to  the 
absence  of  an  answer  from  the  others,  and  the  answering  defend- 
ants appear  to  have  had  the  same  opportunities  as  the  others  for 
knowledge  and  understanding  of  the  transactions,  and  show  clear 
grounds  for  the  dissolution  of  the  injunction,  it  is  not  error  to 
dissolve  the  injunction.38  And  it  is  no  valid  objection  to  an  appli- 
cation to  dissolve  an  injunction  upon  the  bill  and  answer,  that  the 
personal  representatives  of  a  deceased  co-defendant,  who  was 
jointly  implicated  in  the  fraud  charged  in  the  bill,  have  not  yet 
put  in  their  answer,  unless  they  are  charged  with  knowledge  of 
the  fraud  of  their  testator  or  intestate.39  Where  some  of  the  de- 
fendants had  answered  and  complainant  had  neglected  for  nine 
months  to  obtain  answers  from  the  others,  the  injunction  was  dis- 
solved on  motion  of  those  who  had  answered.40  If  some  of  the 
defendants  have  no  knowledge  of  the  material  allegations  of  the 
bill,  and  all  of  the  matters  as  to  which  they  have  knowledge  are 
admitted  in  the  answers  put  in  by  other  defendants,  it  is  obvious 
that  the  motion  for  dissolution  may  properly  be  decided  without 
their  answers.41 

New  York. — Depeyster    v.    Graves,  sisted,  however,  that  the  injunction 

2  Johns.   Ch.    (N.  Y.)    148;    Mallett  was    prematurely    dissolved,    because 

v.  The  Weybosset  Bank,  1  Barb.    (N.  all  the  defendants  had  not  filed  an- 

Y.)    217.  swers.    But  a  plaintiff  can  in  no  case 

,37.  Mallett  v.  Weybosset  Bank,   1  complain  that  an  injunction  has  been 

Barb.     (N.    Y.)     217;     Depeyster    v.  dissolved  before    all    the    defendants 

Graves,  2  Johns.  Ch.    (N.  Y.)    148.  have    answered,   unless    he   has   used 

38.  Douglass  v.  County  of  Baker,  due  diligence  to  expedite  his  cause, 
23  Fla.  419,  2  So.  776.  See,  also,  and  procure  the  answers  of  all  the 
Walsh  v.  Smyth,  3  Bland.  Ch.  defendants.  See  Mallet  v.  Weybosset 
(Md.)    9.  Bank,    1    Barb.     219;     Depeyster     v. 

39.  Wakeman  v.  Gillespy,  5  Paige  Graves,  2  Johns.  Ch.  148;  Stouten- 
(N.  Y.),  112.  burgh  v.  Peck,  3  Green  Ch.  446;  See- 

40.  Depeyster  v.  Graves,  2  Johns.  bor  v.  Hess,  5  Paige,  85.  In  this  case 
Ch.  (N.  Y.)   148.  the  plaintiff    used    no    sort  of  dili- 

41.  Shonk  v.  Knight,  12  W.  Va.  gence.  He  never  issued  a  summons 
€67,  684,  per  Green,  J. :     "  It  is  in-  even   against  any  of  the  defendants 

503 


§325 


Dissolution. 


§  325.  Same  subject. — Where  those  not  answering  are  merely 
formal  parties,  or  are  infants  or  non-residents,  whose  answers  can- 
not be  material  in  regard  to  the  facts  on  which  the  injunction  is 
based,  their  answers  will  not  be  required  as  a  prerequisite  to  hear- 
ing the  motion  to  dissolve.42    In  England,  the  general  rule  is  that 


except  against  Laidley  and  Knight, 
trustees,  and  Brown  and  Cowen,  trus- 
tees. It  is  obvious  from  the  bill  and 
answers  that  the  trustees,  Laidley 
and  Knight,  have  no  knowledge  of 
the  material  allegations  of  the  bill  in 
reference  to  the  mistake  or  fraud 
in  setting  forth  the  boundaries  of 
the  land  in  the  deeds,  and  that  all 
the  allegations  in  the  bill  that  they 
have  any  knowledge  about  are  fully 
admitted  in  the  answers  that  are 
filed,  so  that  no  just  complaint  can 
be  made  of  the  court's  acting  on  the 
motion  to  dissolve  before  they  filed 
the  answers.  It  is  only  necessary 
that  those  on  whom  rests  the  grava- 
men of  the  charge,  should  answer. 
See  cases  just  cited,  and  Vliet  v. 
Lowmason,  1  Green  Ch.  404.  The 
only  defendants  who  have  any  knowl- 
edge about  the  material  and  contro- 
verted facts  in  the  case  who  have 
not  answered,  are  Echols,  Bell,  Cat- 
lett  and  Cowen.  No  summons  ever 
issued  against  Echols,  Bell  or  Cat- 
lett,  and  when  the  summons  was  is- 
sued against  Cowen,  it  was  returned 
by  the  sheriff  of  Kanawha  county, 
'  not  found  and  no  inhabitant  of 
Kanawha  county.'  And  the  plaintiff 
never  issued  another  summons 
against  Cowen,  or  made  any  efforts, 
so  far  as  the  record  shows,  to  obtain 
his  answer,  or  the  answer  of  Echols, 
Bell  or  Catlett.  The  statements,  too, 
contained  in  the  answers  filed,  jus- 
tify the  conclusion  that  had  the 
plaintiff  desired,  he  could  have  pro- 
cured   those     answers.       The     court, 


therefore,  properly  acted  on  the  mo- 
tion to  dissolve,  without  awaiting 
the  filing  of  those  answers." 

42.  Heck  v.  Vollmer,  29  Md.  507; 
Shricker  v.  Field,  9  Iowa,  366;  Hig 
gins  v.  Woodward,  Hopk.  Ch.  (N. 
Y.)  342.  And  see  Gregory  v.  Still 
well,  6  N.  J.  Eq.  51;  Adams  v.  Hud 
son  Co.  Bank,  10  N.  J.  Eq.  535.  In 
Jones  v.  Magill,  1  Bland  Ch.  (Md.), 
177,  190,  per  Bland,  Ch.:  "It  is  an 
ancient  and  well-settled  rule,  that 
where  there  are  several  defendants  to 
the  bill,  no  motion  to  dissolve  the  in- 
junction can  be  heard  until  all  of 
them  have  answered.  Eden,  Inj.  66; 
Wright  v.  Nutt,  2  Dick.  691.  But 
to  this  rule  there  are  exceptions.  As 
where  the  trustee  and  cestui  que 
trust  were  both  made  defendants,  and 
the  trustee  would  not  answer,  a  mo- 
tion to  dissolve  was  permitted  to  be 
made  on  the  answer  of  the  cestui  que 
trust  alone;  and,  indeed,  where  there 
appeared  to  have  been  fraud  and  col- 
lusion, the  cestui  que  trust,  though 
not  a  party  to  the  suit,  was  allowed 
to  move  for  a  dissolution  of  the  in- 
junction. Nugent  v.  Smyth,  Mosely. 
354;  and  the  injunction  may  be  dis- 
solved as  against  some  of  the  de- 
fendants only,  or  it  may  be  dis- 
solved on  the  answer  of  an  insolvent 
who  has  no  interest  in  the  matter, 
upon  his  speaking  to  facts  peculiarly 
within  his  own  knowledge  before  his 
insolvency.  Joseph  v.  Doubleday,  1 
Ves.  &  B.  497;  and  so  where  it  ap- 
pears, from  the  nature  of  the  case, 
that  the  responding  defendant  is  the 


iO-i 


Dissolution.  §  326 

an  injunction  of  proceedings  at  law,  which  has  been  granted  against 
several  defendants,  is  not  to  be  dissolved  till  all  have  answered ; 
though  where  some  are  absentees  it  is  deemed  a  hardship  that  the 
others  who  have  answered  should  be  helpless  to  resist  the  injunc- 
tion;43 but  there  are  exceptions  to  the  general  rule.44  An  order 
nisi  is  necessary  on  behalf  of  the  defendant  moving.45 

§  326.  Same  subject. — Where  one  of  the  defendants  is  an 
absentee,  and  it  is  impossible  to  procure  his  answer,  because  he  is 
beyond  the  jurisdiction  of  the  court,  as  where  a  party  defendant 
is  a  foreign  corporation,  another  defendant  who  has  answered  and 
denied  all  the  equities  alleged  in  the  bill,  may  be  allowed  to  move 
thereon  for  a  dissolution.46  And  where  there  are  only  two  defend- 
ants, one  of  whom  is  a  mere  stakeholder  of  the  money  in  contro- 
versy, the  right  to  which  is  litigated  between  his  co-defendant  and 
the  plaintiff,  the  injunction  may  be  dissolved  on  the  answer  of  the 
contesting  defendant,  wherein  he  denies,  from  his  own  knowledge, 
all  the  equities  of  the  bill,  though  a  decree,  pro  confesso,  has  been 
taken  against  the  other  defendant.47  And  the  settled  Alabama  rule 
is  that  an  injunction  may  be  dissolved  upon  the  answer  of  those 
defendants  within  whose  knowledge  the  facts  charged  in  the  bill 
must  be,  if  they  exist  at  all,  though  there  are  other  defendants  who 
have  not  answered.48 

§  326a.  Where  additional  parties  are  brought  in. — The  ques- 
tion being,  when  a  motion  to  dissolve  an  injunction  is  made, 
whether  at  the  time  such  motion  is  made,  the  injunction  ought, 
upon  all  the  facts  before  the  court,  to  be  continued,  it  is  decided 

only  one  who  can  speak  from  his  own  45.  Nay  lor   v.   Middleton,   2   Mad. 

knowledge  in  relation  to  the  facts  on  131. 

which  the  injunction  rests.     Boheme  46.    Baltimore,     etc.,     R.     Co.    v. 

v.   Porter,   Barn.   Ch.   352;    as  where  Wheeling,  13  Gratt.   (Va.)    40;  Lewis 

the    defendants    who     have     not    an-  v.  Smith,  7  Beav.  470. 

swered  are  infants."  47.   Colton  v.  Price,  50  Ala.  424. 

43.  Lewis  v.  Smith,  7  Beav.  470.  See,  also,  Gregory  v.  Stillwell,  6  N. 

44.  Joseph   v.    Doubleday,    1    Ves.      J.  Eq.  51. 

&  B.  497 ;  Todd  v.  Dismor,  2  S.  &  St.  48.   Dunlap  v.    Clements,    7    Ala. 

477;      Imperial     Gas     Light    Co.    v.       539;  Long  v.  Brown,  4  Ala.  622. 
Clarke,  Younge,  580. 

505 


§§  327,  328  Dissolution. 

that,  if  after  the  granting  of  an  injunction,  an  amendment  is  made, 
adding  additional  parties,  a  subsequent  motion  to  dissolve  should 
not  be  determined  by  the  fact  whether  it  was  properly  granted  to 
the  original  complainant  but  whether,  upon  the  real  merits  of  the 
case,  it  would  have  been  granted  if  the  after-named  complainants 
had  been  originally  named  and  whether  under  all  the  facts  of  the 
case  at  the  time  the  motion  is  made  their  interests  require  its 
continuance.49  In  a  case  in  Texas  it  is  decided  in  this  connection 
that  an  intervener  in  an  injunction  suit,  cannot  successfully  op- 
pose the  dissolution  of  the  injunction,  unless  he  shall  have  made 
out  a  case  which  entitled  him  to  one.50 

§  327.  Dissolution  of  common  and  special  injunctions. — In 

the  case  of  a  common  injunction,  by  which  proceedings  at  law 
are  restrained,  the  rule  is,  or  formerly  was,  to  dissolve  it  when 
the  allegations  in  the  complaint  are  fully  denied  by  the  answer." 
But  special  injunctions,  which  are  in  aid  of  a  pending  suit,  and 
whose  object  is  to  secure  to  the  plaintiff  the  benefit  of  the  action, 
will  not  be  dissolved  when  it  appears  to  the  court,  by  affidavits  or 
otherwise,  that  there  is  probable  ground  for  the  primary  equity, 
and  a  reasonable  apprehension  of  irreparable  loss.52 

§  328.  Where  enforcement  of  judgment  stayed. — Ordinarily 
an  injunction  to  stay  proceedings  in  an  action  at  law  should 
be  dissolved  on  the  coming  in  of  an  answer  which  fully  denies  all 
the  equities  of  the  bill.53    And  a  bill  for  an  injunction  to  restrain 

49.  Warren  v.  Pim,  65  N.  J.  Eq.  be  read  by  complainant,  in  opposi- 
36,  55  Atl.  66.  tion  to  a  motion  made  on  the  coming 

50.  Taylor  v.  Gilleau,  23  Tex.  508.  in   of  the  answer,  to  dissolve   an  in- 

51.  Perry  v.  Michaux,  79  N.  C.  94;  junction  restraining  one  copartner 
Jones  v.  McKenzie,  6  Jones  Eq.  (N.  from  using  the  partnership  name, 
C.)  203;  Mims  v.  McLean,  6  Jones  etc.,  or  in  support  of  the  allegations 
Eq.  (N.  C.)  200;  Dyche  v.  Patton,  8  of  the  bill.  The  injunction  was  dis- 
Ired.  Eq.   (N.  C.)   295.  solved. 

52.  Blackwell  Tobacco  Co.  v.  Mc-  53.  Dexter  v.  Ohlander,  95  Ala. 
Elwee,  94  N.  C.  425;  Jarman  v.  467,  10  So.  527;  Wooden  v.  Wooden, 
Saunders,  64  N.  C.  367.  In  Eastburn  3  N.  J.  Eq.  429.  Complainant  agreed, 
v.  Kirk,  1  Johns.  Ch.  (N.  Y.)  444,  in  payment  for  a  piano  bought  of 
Kent,  Ch.,  ruled  that  affidavits  could  defendant  through  an  agent,  to  give 

506     • 


Dissolution.  §  329 

the  collection  of  a  judgment  will  be  dismissed  and  the  injunction 
dissolved,  on  its  appearing  that  there  was  a  defense  to  the  action 
in  which  the  judgment  was  obtained,  which  the  defendant  might 
have  ascertained  by  inquiry  and  proper  diligence.54  And  an  in- 
junction, restraining  several  actions  at  law  on  the  sole  ground 
that  they  involve  the  same  matters  of  fact  and  law,  without  any 
other  community  of  interest  between  the  complainants,  should  be 
dissolved.  Thus,  where  several  persons  had  property  destroyed  by 
sparks  from  the  same  railroad  engine,  and  sued  separately  for 
damages,  an  injunction  restraining  the  separate  actions  was  dis- 
solved on  appeal.55  Upon  a  motion  to  dissolve  an  injunction  be- 
fore an  answer,  all  the  allegations  of  the  bill  must  be  taken  as  true, 
for,  by  declining  to  answer,  the  defendant  is  regarded  as  admit- 
ting the  allegations  of  the  bill.  Therefore  it  is  error  to  dissolve 
the  injunction  of  a  judgment  alleged  to  have  been  discharged  in 
bankruptcy,  if  the  defendant  has  not  denied  such  allegation.56  In 
Louisiana,  where  execution  of  a  judgment  for  a  sum  of  money 
has  been  enjoined,  the  surety  in  the  injunction  bond,  being  ipso 
facto  co-plaintiff,  is  not  entitled  to  notice  of  the  dissolution  before 
issuance  of  the  execution.57 

§  329.  Same  subject. — Where  an  injunction  has  been  issued 
against  the  execution  of  a  judgment,  or  other  proceeding  at  law, 
and  the  plaintiff's  right  to  relief  rests  on  an  accounting,  or  matters 
of  trust  of  purely  equitable  jurisdiction,  it  should  not  be  dissolved 

his   notes,   payable    monthly   without  to    take    further    proof    was    made. 

interest,    and     signed     several    notes  Held,  on  defendant's  motion,   it  was 

without    examining   them,    the    agent  not  erroneous  to  dissolve  the  injunc- 

assuring   him    they   were    in   keeping  tion  as  improvidently  issued.     Davis 

with  the  contract.    The  first  note  was  v.  Hart,  66  Miss.  642,  6  So.  318. 

presented,  and  payment  refused,  be-  54.  Harding  v.  Hawkins,    141   111. 

cause  it  bore  interest,  and  stipulated  672,  31  N.  E.  307. 

for  attorney's  fees  if  suit  was  brought  55.  Tribbette  v.  Illinois  Central  R. 

thereon,  and  two  others  of  the  notes  Co.,  70  Miss.  182,  12  So.  32. 

fell  due  and  were  put  in  suit.     In  a  56.   Peatross     v.     McLaughlin,     6 

suit  to  enjoin  these  suits  defendant  Gratt.   (Va.)   64. 

in  his  answer  denied  the  allegations,  57.    Friedman    v.    Adler,    36    La. 

and   some   proof  was   taken   by  both  Ann.  384. 

parties,  but  no  application  for  time 

507 


§  329  Dissolution. 

until  the  hearing.58  Thus,  where  the  collection  of  a  judgment 
has  been  enjoined,  and  the  answer  of  defendant  shows  that  there 
is  a  sum  in  his  hands,  which  he  has  agreed  to  apply  as  a  credit  on 
such  judgment,  and  it  is  uncertain  what  is  the  amount  which  he 
ought,  under  the  agreement,  to  credit  on  such  judgment,  the  court 
ought  not  to  dissolve  the  injunction  until  it  has  ascertained  the 
amount  of  the  credit  which  should  be  so  given.59  And,  where  an 
action  at  law  was  enjoined  on  a  bill  for  discovery  and  relief,  and 
the  defendant  in  the  injunction  suit  moved  to  dissolve,  on  the 
ground  that  the  discovery  had  been  obtained,  and  the  equity  of  the 
bill  fully  answered,  the  motion  was  refused  because  the  bill  prayed 
for  relief  as  well  as  discovery,  and  in  regard  to  a  matter  which 
peculiarly  belonged  to  equity  jurisdiction.60  Though  an  injunction 
to  restrain  an  action  at  law  should  generally  be  dissolved,  where 
the  defendant  could  have  made  his  defense  therein,  yet  it  is  error 
to  refuse  to  dissolve  an  injunction  of  a  trespass  suit,  where  it  is 
adjudged  that  the  defendant  had  title  to  the  property.61  Under  a 
Code  provision  in  Alabama  it  has  been  decided  that  an  interlocu- 
tory decree,  dissolving  an  injunction  to  stay  proceedings  on  a 
judgment  at  law,  should  order  defendant  to  give  a  refunding  bond, 
as  a  condition  precedent  to  the  enforcement  of  the  judgment,  in 
case  it  should  afterwards  be  perpetually  enjoined.62  Upon  a 
motion  to  dissolve  an  injunction  against  a  judgment  at  law,  it  is 
not  proper  to  decree  that  the  injunction  be  made  perpetual,  even 
as  to  a  part  of  the  judgment  admitted  by  the  answer  to  have  been 
paid,  but  the  proper  course  is  to  continue  the  injunction,  as  to  such 
part,  until  the  hearing,  and  dissolve  it  as  to  the  residue,  if  that 

58.  Harding  v.  Hawkins,   141    111.  652,  24  L.  Ed.  216." 

572,  31  N.  E.  307,  per  Shope,  J.:    "A  59.   Heatherly   v.    Farmers'   Bank, 

judgment    at    law    may    be    enjoined  31  W.  Va.  70,  5  S.  E.  754.    See,  also, 

when  the  defense  is  an  equitable  one,  Quackenbush  v.  Van  Riper,  Saxt.  {N. 

and  not  available  in  an  action  at  law.  J.)     476;     MeVickar    v.    Wolcott,    4 

If  the  matter  relied  upon  by  the  com-  Johns.   (N.  Y.)   533. 

plainant    could    not    have    been    re-  60.  Brown  v.  Edsall,  9  N.  J.  Eq. 

ceived  as  a  defense  in  the  action  at  256. 

law,    equity    may    relieve,    notwith-  61.  Union    Mut.    Life    Ins.    Co.   v. 

standing    an    ineffectual    attempt    to  Slee  (111.),  13  N.  E.  222. 

defend  at  law.  Vennum  v.  Davis,  35  62.  Dexter    v.    Ohlander,    95    Ala. 

111.  568;   Crim  v.  Handley,  94  U.  S.  467,  10  So.  527. 

508 


Dissolution.  §§  330,  330a 

3eem  proper  on  the  answer.63  An  injunction  against  the  collection 
of  a  judgment,  on  the  ground  that  it  is  excessive,  will  be  dissolved 
on  the  defendant's  allowing  a  credit  for  the  excess.64 

§  330.  Dissolution  by  implication ;  by  sustaining  demurrer. — 

The  allowance  of  defendant's  plea,  which  either  constitutes  a  de- 
fense to  the  complainant's  whole  case,  or  deprives  him  of  all  power 
to  further  prosecute  his  action,  does  not,  ipso  facto,  dissolve  the 
injunction,  but  in  such  case,  a  dissolution  will  generally  be 
granted,  as  of  course,  on  defendant's  motion.60  The  dismissing  out 
of  a  case  all  charged  in  the  bill  upon  which  the  injunction  issued, 
by  sustaining  a  demurrer  thereto,  is,  in  substance,  a  dissolution  of 
the  injunction  without  a  formal  order  of  such  dissolution.  Thus, 
where  demurrers  are  sustained  to  that  portion  of  a  bill,  on  the 
strength  of  which  a  temporary  injunction  has  been  issued,  and  the 
lecord  recites  that  "  the  sufficiency  of  said  causes  of  demurrer  hav- 
ing been  passed  upon,  when  the  order  dissolving  the  injunction 
was  made  and  entered,"  the  injunction  will  be  considered  dis- 
solved, though  no  formal  order  of  dissolution  appears  of  record.66 

§  330a.  Same  subject ;  injunction  in  force  until  a  certain  time. 
— A  temporary  injunction  which  is  limited  in  its  duration  to  a 
day  certain  when  there  shall  be  a  hearing  to  determine  why  an 
injunction  should  not  be  granted,  expires  of  its  own  limitation 
when  the  hearing  is  had  and  an  injunction  refused.67  So  in  an 
early  case  in  Virginia  it  is  decided  that  where  an  injunction  is 
awarded  "  until  the  coming  in  of  the  answer  "  it  is  at  an  end  when 
the  answer  comes  in,  so  that  it  is  unnecessary  for  the  defendant 

63.  McReynolds  v.  Harshaw,  2  (2  Dick.)  536;  Ferrand  v.  Homer,  4 
Tred.  Eq.  (N.  C.)  29.  Myl.  &  C.  143. 

64.  Rodahan  v.  Driver,  23  Ga.  352.  66.  Thomsen  v.  McCormick.  136 
See  Welch  v.  Parran,  2  Gill  (Md.).  111.  135,  26  N.  E.  373.  See,  also,  New 
320.  Nat.  Turnpike  Co.  v.  Dulaney,  86  Ky. 

65.  Fulton  v.  Greacen,  43  N.  J.  516,  6  S.  W.  590.  See  Folsom  v.  Bal- 
Eq.  443,  15  Atl.  827 ;  Phillips  v.  lard,  70  Fed.  12,  36  U.  S.  App.  75,  16 
Langhorn,   46   N.   J.    Eq.    (1    Dick.)  C.  C.  A.  593. 

148;  Mason  v.  Murray,  47  N.  J.  Eq.  67.  Powell  v.  Parker,  38  Ga.  644. 

509 


§  330b 


Dissolution. 


to  move  to  dissolve.68  But  in  a  later  case  in  the  same  State  it  was 
held  that  the  injunction  was  not  dissolved  by  the  coming  in  of  the 
answer  but  was  a  subsisting  injunction  until  dissolved  by  the  sub- 
sequent order  of  the  chancellor.69 

§  330b.  Same  subject ;  dismissal  of  bill ;  effect  of  decree — A 
decree  dismissing  the  bill  for  an  injunction,  operates  as  a  dissolu- 
tion of  an  interlocutory  injunction,  unless  it  is  continued  in  force 
in  whole  or  in  part,  by  some  order  of  the  court.70  So  where  the 
injunction  is  ancillary  to  the  principal  action  and  such  action  fails 
by  a  verdict  for  the  defendants,  the  injunction  falls  with  it  and 
should  be  dissolved.72    So  in  a  case  in  New  York  it  is  decided  that 


68.  Beal  y.  Gibson,  4  Hen.  &  M. 
(Va.)  481,  holding  that  in  such  a 
case  the  plaintiff  may  move  to  rein- 
state. 

69.  Turner  v.  Scott,  5  Rand.  (Va.) 
332. 

70.  Bogacki  v.  Welch,  94  Ala.  429, 
10  So.  330. 

United  States. — Coleman  v.  Hud- 
son River  Bridge  Co.,  Fed.  Cas.  No. 
2983,  5  Blatchf.  56. 

See  Prieth  v.  Campbell  Printing  P. 
&  M.  Co.,  80  Fed.  539,  39  U.  S.  App. 
591,  25  C.  C.  A.  624. 

California. — Dowling  v.  Polack,  18 
Cal.  625. 

Georgia. — Old  Hickory  Distilling 
Co.  v.  Bleyer,  74  Ga.  201. 

Illinois. — Thomsen  v.  McCormick, 
136  111.   135,  26  N.  E.  373. 

Kentucky. — Crook's  Adm'r  v.  Tur- 
pin,  10  B.  Mon.  243. 

Maryland. — Musgrave  v.  Staylor, 
36  Md.  123. 

Mississippi. — Yale  v.  Baum,  70 
Miss.  225,  11  So.  879. 

New  York. — Gardner  v.  Gardner,  87 
N.  Y.  14;  Crockett  v.  Smith,  14  Abb. 
Prac.  62 ;  Hope  v.  Acker,  7  Abb.  Prac. 
308;  Palmer  v.  Foley,  2  Abb.  N.  C. 
191;  Hoyt  v.  Carter,  7  How.  Prac. 
140. 


Ohio. — Krug  v.  Bishop,  11  Wkly. 
Law  Bull.  295. 

West  Virginia. — Atkinson  v.  Beck- 
ett, 36  W.  Va.  438,  15  S.  E.  179. 

See  Hostler  v.  Marlowe,  44  W.  Va. 
707,  30  S.  E.  146. 

Compare  Collier  v.  Bank  of  New 
bern,  21  N.  C.  328,  holding  that  the 
abatement  of  a  suit  in  equity  for  an 
injunction  is  not  of  itself  a  dissolu- 
tion of  the  injunction  but  that  it  re- 
quires an  order  of  court  for  that  pur- 
pose, which  odrer  it  is  competent  for 
the  court  to  make,  after  an  abate- 
ment by  death. 

Upon  the  entry  of  the  final 
decree  in  a  case  a  temporary  injunc- 
tion ceases  to  be  of  any  force. 
Sweeney  v.  Hanley,  126  Fed.  97,  61 
C.  C.  A.  153;  Gardner  v.  Gardner,  87 
N.  Y.  14. 

An  injunction  will  be  dis- 
solved in  case  of  a  dismissal  of  tbe 
suit  as  to  the  defendant  in  the  ac- 
tion against  whom  the  injunction  was 
issued.  Lyons  v.  Green,  68  Ark.  205, 
56  S.  W.  1075;  Atkinson  v.  Beckett, 
36  W.  Va.  438,  15  S.  E.  179. 

72.  Brennan  v.  Gaston,  17  Cal. 
372;  King  v.  Williamson,  80  Fed. 
170. 


510 


Dissolution.  §§  330c,  331 

a  temporary  injunction  granted,  not  as  a  principal  object,  but  as 
an  incident  to  the  action,  which  by  its  terms  is  to  continue  in 
force  until  further  order  of  the  court,  is  abrogated  by  a  final  judg- 
ment in  the  action,  in  favor  of  plaintiff,  which  makes  no  pro- 
vision for  the  continuance  of  the  injunction,  and  does  not  grant 
any  further  or  other  injunction.73  The  fact  that  the  defendant  has 
appealed  from  a  final  judgment  does  not  alter  the  effect  of  such 
judgment  in  respect  to  the  temporary  injunction.74 

§  330c.  Same  subject  continued — A  decree  for  the  payment  of 
money  which  has  been  enjoined  in  the  hands  of  a  party  to  the  suit 
is  in  effect  a  dissolution  of  an  injunction.75  So  in  the  case  of  a 
bill  for  an  injunction  to  restrain  a  party  from  disposing  of  goods, 
during  the  pendency  of  a  suit  at  law,  when  the  suit  at  law  is  dis- 
missed, it  is  held  that  the  injunction  must  follow  its  steps  as  a 
necessary  consequence.76  And  the  injunction  is  dissolved  by  neces- 
sary implication,  where,  after  the  enforcement  of  a  deed  of  trust 
has  been  restrained,  and  the  correction  of  the  debt  secured  en- 
joined, by  the  court  below,  the  appellate  court,  reversing  on  that 
point,  decrees  the  debt  secured  to  be  valid  and  subsisting,  and 
remands  the  cause  with  directions  to  collect  under  the  deed  of 
trust,  and  apply  proceeds  in  a  given  order ;  and  an  order  of  disso- 
lution before  further  proceedings  by  the  court  below  is  unneces- 
sary.77 Again,  where  on  an  appeal  the  decree  granting  the  in- 
junction is  reversed  on  the  grounds  upon  which  it  was  granted,  the 
injunction  is  thereby  dissolved  though  the  court  does  not  dismiss 
the  bill  but  remands  the  cause.78 

§  331.  Dissolution  of  injunctions  affecting  realty. — Where,  in 
a  suit  for  specific  performance  of  a  verbal  contract  of  sale  of  land, 

73.  Gardner  v.  Gardner,  87  N.  Y.  formal   dissolution  of  the  injunction 
14.  was  necessary. 

74.  Gardner  v.  Gardner,  87  N.  Y.  76.  Phelps  v.  Foster,  18  111.  309. 
14.  77.  Atkinson    v.    Beckett,    36    W. 

75.  Crook's  Exr.  v.  Turpin,  10  B.  Va.  438,  15  S.  E.  179. 

Mon.    (Ky.)     243,    holding    that  no  78.  Gage  v.  Parker,   178  111.  455, 

53  N.  E.  317. 

511 


1 332  Dissolution. 

and  to  enjoin  actions  arising  out  of  a  judgment  against  complain- 
ant in  ejectment,  for  the  same  land,  complainant  based  his  rights 
on  possession  granted  under  the  verbal  contract,  and  on  the  pay- 
ment of  the  price,  which  he  alleged  was  paid  to  defendant,  and 
receipted  for,  it  was  held  that  a  preliminary  injunction  was  prop- 
erly dissolved,  on  the  filing  of  an  answer  denying  that  defendant 
executed  the  receipt,  and  denying  the  payment  of  the  price.7' 
But,  where  the  prosecution  of  an  action  in  ejectment  is  enjoined, 
on  the  ground  of  fraud  in  defendant's  conveyance,  the  injunction 
will  not  be  dissolved,  unless  the  defendant  in  his  answer  fully  meets 
the  charge  of  fraud.80  An  injunction  against  a  judgment,  for 
unpaid  purchase  money  of  real  property,  granted  on  the  ground  of 
defective  title,  will  not  be  dissolved  unless  defendant  exhibits  a 
good  title,  and  establishes  its  sufficiency  before  the  court.81  And 
if  such  an  injunction  is  dissolved,  before  the  vendor  has  tendered 
a  good  and  sufficient  conveyance,  it  may  be  reinstated.82  But, 
where  a  purchaser  has  enjoined  a  sale,  under  a  deed  of  trust 
securing  the  payment  of  the  purchase  money,  on  the  ground  of 
defective  title,  the  injunction  will  be  dissolved  when  the  defect  is 
removed.83 

§  332.  Dissolution  of  injunction  granted  on  charges  of  fraud. 
— Although  it  is  a  general  rule  that  an  injunction  will  be  dissolved 

79.  Louisville  &  N.  R.  Co.  v.  Phil-  that  defendant's  title  was  good  as 
yaw,  94  Ala.  463,  10  So.  83.  Plain-  against  plaintiff,  and  that  defendant, 
tiff,  alleging  title  to  a  mill,  obtained  on  dissolution  of  the  injunction,  was 
an  injunction  to  restrain  defendant  entitled  to  damages  sustained  by  rea- 
from  removing  certain  machinery  son  of  the  injunction,  the  measure  of 
therefrom.  Defendant  denied  plain-  which  would  be  the  value  of  the 
tiff's  title,  and  alleged  that  he  had  granddaughter's  consent  to  the  re- 
conveyed  the  mill  in  question  to  his  moval.  Church  v.  Barkman,  62  Hun 
granddaughter,  reserving  the  right  (N.  Y.),  618,  16  N.  Y.  Supp.  624. 
to  carry  away  the  machinery.  Plain-  80.  Roberts  v.  Anderson,  2  Johns, 
tiff  insisted  that  the  machinery,  be-  Ch.   (N.  Y.)  202. 

ing    fixtures,    was    real    estate,    and  81.  Moore     v.     Cooke,     4     Hayw. 

passed     in     the     conveyance    to    the  (Tenn.)    84;    Moredock   v.    Williams, 

granddaughter,    and    that    defendant  1  Overton   (Tenn.),  325. 

had   no    right   to    remove    the   same.  82.  Grantland  v.  Wight,  2  Munf. 

Held,   whether    or    not    the   fixtures  (Va.)    179. 

were  real  estate,  the  granddaughter,  83.  Lovell    v.    Chilton,    2    W.    Va. 

not  choosing  to  assert  title  thereto,  410. 

512 


Dissolution. 


§332 


where  the  answer  denies  all  the  facts  and  circumstances  upon 
which  the  equity  of  the  bill  is  based  yet  this  is  subject  to  the  ex- 
ception that  where  the  gravamen  of  a  petition  for  an  injunction 
is  fraud,  the  preliminary  injunction  will  not  be  dissolved  upon  the 
answer,  even  though  it  has  fully  denied  the  allegations  and  equities 
of  the  petition.84  In  a  case  in  Pennsylvania,  however,  it  is  decided 
that  a  preliminary  injunction,  granted  on  a  bill  charging  fraud, 
should  be  dissolved,  on  defendant's  positive,  direct,  and  explicit 
answer,  and  defendant's  denying  the  fraud.85  But  to  justify  the 
dissolution  of  an  injunction  under  such  circumstances  the  denials 
of  fraud  must  not  be  merely  general  and  bare,  but  must  be  at- 
tended with  a  full  explanation  of  the  facts  disclosed  in  the  bill 
and  moving  affidavits;86  for,  an  injunction  granted  on  plausible 
allegations  of  fraud,  must  not  be  dissolved  on  an  answer  which 
leaves  the  question  of  fraud  as  unsettled  as  before.87  And  an  in- 
junction obtained  on  the  ground  of  fraud,  in  certain  conveyances, 
will  be  dissolved  on  its  appearing  from  the  answer,  that  the  com- 
plainant had  long  known  of  the  alleged  fraud,  and  had  acquiesced 
in  the  defendant's  acts  of  ownership.88 


84.  Georgia. — Dent  v.  Michael,  12 
Ga.  5. 

Iowa. — Walker  v.  Stone,  70  Iowa, 
103,  30  N.  W.  39;  following  Stewart 
v.  Johnson,  44  Iowa,  435. 

New  Jersey. — Emson  v.  Ivins,  42 
N.  J.  Eq.  277,  10  Atl.  877. 

ATeto  York. — Litchfield  v.  Relton,  6 
Barb.  187;  Claflin  v.  Hamlin,  62 
How.  Prac.  284. 

North  Carolina. — Coleman  v.  How- 
ell, 131  N.  C.  125,  42  S.  E.  555. 

Texas. — Friedlander  v.  Ehren- 
worth,  58  Tex.  350. 

85.  Union  St.  R.  Co.  v.  Hazleton 
&  N.  S.  E.  R.  Co.,  154  Pa.  St.  422, 
26  Atl.  557. 

86.  Hayden  v.  Thrasher,  20  Fla. 
715,  735. 

87.  Roberts  v.  Anderson,  2  Johns. 
Ch.    (N.    Y.)     204,    per    Kent,   Ch.: 


"  The  fraud,  as  charged,  is  a  proper 
and  familiar  head  of  equity  jurisdic- 
tion, and,  unless  the  answer  be  full 
and  satisfactory,  the  injunction,  if 
right  in  the  first  instance,  ought  to 
be  retained  until  the  hearing.  All 
the  denial  contained  in  the  answer 
is  that  the  defendants  were  not  privy 
to  any  fraud,  and  were  bona  fide  pur- 
chasers under  a  judgment  and  execu- 
tion. .  .  .  This  is  leaving  the 
question  of  fraud  as  unsettled  as  be- 
fore the  answer  came  in.  The  case 
does  not  fall  within  the  reason  of  the 
general  rule,  that  an  injunction  is  to 
be  dissolved  when  an  answer  comes 
in  and  denies  all  the  equities  of  the 
bill." 

88.  Trustees    v.    Gilbert,    1   Beas. 
(N.  J.)  78. 


513 


33 


§§  333,  334  Dissolution. 

§  333.  Dissolution  on  removal  of  cause  to  Federal  court. — 

It  is  provided  by  the  Revised  Statutes  of  the  United  States, 
that  an  injunction  had  in  a  cause  in  a  State  court,  shall,  on 
removal  of  the  cause  to  a  Federal  court,  continue  in  force  until 
dissolved  in  the  Federal  court;  but  a  motion  for  dissolution  will 
not  be  entertained  there  without  leave  of  court  first  obtained,  as 
such  a  motion  is  regarded  as  an  application  for  a  re-argument  of 
the  motion  before  the  State  court.89  So  it  has  been  decided  that 
while  a  Federal  court  may  in  some  cases  dissolve  an  injunction 
allowed  in  a  case  in  a  State  court  before  the  removal  of  such  case 
to  the  Federal  court,  yet  such  an  order  will  not  be  made  as  the 
result  of  the  reconsideration  of  any  question  of  pleading  or  practice 
decided  by  the  State  court  before  it  was  deprived  of  jurisdiction.90 
The  former  rule  was  that  a  removal  from  a  State  court  to  a  Federal 
operated  in  itself  as  a  dissolution  of  an  injunction  before  granted 
by  the  State  court.91 

§  334.  Dissolution  not  affected  by  mere  appeal When  an 

injunction  has  been  dissolved,  it  cannot  be  revived  except  by  a  new 
exercise  of  judicial  power,  and  a  mere  appeal  from  the  order  or 
decree  of  dissolution  does  not  affect  it  until  reversal.92    An  injunc- 

89.  Carrington  v.  Florida  R.  Co.,  109  U.  S.  150,  161,  3  S.  Ct.  136, 
9  Blatchf.    (U.  S.)    468.  27     L.    Ed.    888;     Slaughter    House 

90.  Smith  v.  Schwed,  6  Fed.  455,  Cases,  10  Wall.  (U.  S.)  273, 
holding  that  in  such  a  case  an  in-  297,  19  L.  Ed.  915.  Equity  Rule, 
junction  would  not  be  dissolved  on  93,  is  as  follows:  "When  an  ap- 
ground  that  bill  was  not  sufficiently  peal  from  a  final  decree  granting 
verified.  or    dissolving    an    injunction    is    al- 

91.  Hatch  v.  Chicago  R.  Co.,  6  lowed  by  a  justice  or  judge  who  took 
Blatchf.  (U.  S.)  105;  McLeod  v.  part  in  the  decision  of  the  cause,  he 
Duncan,  5  McLean   (U.  S.)   342.  may,  in  his  discretion,  at  the  time  of 

92.  Knox  County  v.  Harshman,  the  allowance,  make  an  order  sus- 
132  U.  S.  14,  10  S.  Ct.  8,  33  L.  pending  or  modifying  an  injunction, 
Ed.  249;  Leonard  v.  Ozark  Land  Co.,  during  the  pendency  of  the  appeal, 
115  U.  S.  465,  6  S.  Ct.  127,  29  L.  upon  such  terms  as  to  bond  or  other- 
Ed.  445.  A  decree  of  a  Federal  court  wise  as  he  may  consider  proper  for 
dissolving  an  injunction  is  not  af-  the  security  of  the  rights  of  the  op- 
fectcd  by  taking  the  case  for  review  posite  party."  Leonard  v.  Ozark 
to  the  Supreme  Court  on  appeal  or  Land  Co..  115  XJ.  S.  465,  6  S.  Ct.  127, 
writ  of  error.      Hovey  v.  McDonald,  29  L.  Ed.  445. 

514 


Dissolution. 


^335 


tion  is  not  dissolved  by  taking  an  appeal  from  the  order  granting 
it;93  nor  is  it  suspended  by  an  appeal  and  an  appeal  bond.91  Thus, 
on  the  dissolution  of  an  injunction  restraining  a  judgment  cred- 
itor from  proceeding  with  an  execution,  he  may  proceed,  notwith- 
standing an  appeal,  to  collect  his  judgment  as  if  he  had  not  been 
enjoined,95  and  without  any  special  leave  from  the  court  which 
granted  the  injunction;96  and  in  such  a  case,  if  an  execution  is 
taken  out  pending  the  appeal,  the  court  will  not,  on  petition,  award 
a  supersedeas.97 

§  335.  Notice  of  motion  to  dissolve;  general  rule. — The  gen- 
eral rule  is  that  the  party  who  has  obtained  an  injunction  is  en- 
titled to  notice  of  motion  to  dissolve  it;98  and  that  the  injunction 
cannot  be  vacated  at  chambers  on  an  ex  parte  application.99  And 
service  of  a  rule  to  dissolve  at  the  plaintiff's  office,  in  his  absence, 
is  not  sufficient,  and  the  defect  is  not  waived  by  his  appearance 
in  court  merely  to  take  an  appeal.1  Notice  of  a  motion  to  dissolve 
an  injunction  must  be  given  a  reasonable  time  before  the  motion 


93.  Swift  v.  Shepard,  64  Cal.  423, 
1  Pac.  493;  Merced  Mining  Co.  v. 
Fremont,  7  Cal.  130;  Leonard  v. 
Ozark  Land  Co.,  115  U.  S.  465,  6  S. 
Ct.  127,  29  L.  Ed.  445. 

94.  Heinlen  v.  Cross,  63  Cal.  44. 

95.  Hoyt  v.  Gelston,  13  Johns. 
(N.  Y.)  139,  per  Curiam:  "In  this 
case  the  injunction  has  been  dis- 
solved, from  which  order  there  was 
an  appeal;  and  it  is  now  urged  that 
this  appeal  suspends  all  proceedings 
in  this  court  as  much  as  if  the  in- 
junction was  still  in  force.  To  give 
such  effect  to  an  appeal  would  be 
very  mischievous  in  practice  and 
serve  as  a  great  engine  of  delay.  We 
must  consider  the  case  now  in  this 
court  as  if  no  injunction  had  ever 
issued." 

96.  Wood  v.  Dwight,  7  Johns.  Ch. 
(N.  Y.)  295.  See,  also,  Duckett  v. 
Dalrymple,  1  Rich.  Law  (S.  C),  143. 


97.  Garrow  v.  Carpenter,  4  Stew. 
&  P.  (Ala.)  336.  But  see  Turner  v. 
Scott,  5  Rand.  (Va.)  332;  Epps  v. 
Thurman,  4  Rand.   (Va.)   384. 

98.  Pike  v.  Bates,  34  La.  Ann.  391; 
Waffle  v.  Vanderheyden,  8  Paige  (N. 
Y.),  45;  Newton  M'f'g  Co.  v.  White, 
47  Ga.  400. 

99.  Gravais  v.  Falgoust,  34  La. 
Ann.  99. 

1.  Marin  v.  Thierry,  29  La.  Ann. 
362,  where  it  was  held  that  the  ser- 
vice of  notice  must  be  personally 
made  on  the  plaintiff,  or  served  at 
his  domicil,  or  on  his  attorney,  and 
that  service  at  plaintiff's  office  in  his 
absence  was  not   sufficient. 

The  solicitor  of  a  defendant  who 
has  appeared  in  the  suit  is  entitled  to 
notice  of  an  application  for  an  in- 
junction upon  a  supplemental  bill. 
Snediker  v.  Pearson,  2  Barb.  Ch.  (N. 
Y.)    107. 


515 


§  336  Dissolution. 

is  made,  in  order  to  allow  complainant  to  take  affidavits  to  support 
his  bill.2  A  notice  of  a  motion  to  dissolve  an  injunction  "  for 
irregularity  in  the  proceedings,"  is  insufficient;  it  must  indicate 
in  what  particular  the  proceedings  are  irregular.3  But  a  general 
notice  is  sufficient  when  the  motion  to  dissolve  is  for  want  of 
equity  in  the  bill.4  And  a  notice  of  motion  to  dissolve  an  injunc- 
tion upon  bill  and  answer  need  not  state  the  grounds  upon  which 
it  is  based.5  But  where  an  answer  has  been  filed  and  on  a  motion 
to  dissolve  defendant  relies  upon  anything  except  the  want  of 
equity  in  the  bill  and  his  answer,  he  must  specify  in  his  notice  the 
grounds  upon  which  he  rests.6  The  notice  of  motion  must  be 
certain,  and  not  in  the  alternative.  Thus  a  notice  to  the  com- 
plainant that  application  will  be  made  to  the  chancellor  in  vaca- 
tion to  dissolve  the  injunction  "  at  Lafayette,  in  Chambers  county, 
Ala.,  or  at  such  place  as  said  chancellor  may  be  required  by  law," 
is  void  for  uncertainty.7  In  Georgia  it  is  decided  that  the  latter 
practice  as  to  notice  of  motion  is  to  require  the  motion  to  be 
put  on  the  motion  docket  and  reasonable  notice  to  be  given 
according  to  the  circumstances.8  In  West  Virginia  it  is  held  that 
while  a  bill  of  injunction  is  still  at  rules,  not  on  the  court  docket, 
because  not  material  for  hearing,  the  defendant  may  move  the  court 
to  dissolve  the  injunction,  but  that  the  opposite  party,  who  doe3 
not  appear,  must  have  reasonable  notice  of  such  motion.9 

§  336.  Same  subject. — Under  section  626  of  the  New  York 
Code  of  Civil  Procedure,  where  an  injunction  was  granted  without 
notice,  the  party  enjoined  may  move  before  the  granting  judge 
to  dissolve  it,  on  the  papers  on  which  it  was  granted,  and  without 
notice;  but  in  such  cases  the  judge  should  proceed  with  caution, 

2.  Wilkins  v.  Jordan,  3  Wash.  C.      267 ;  Miller  v.  Traphagan,  6  N.  J.  Eq. 
C.  226.  200;  Morris  Canal  Co.  v.  Bartlett,  3 

3.  Miller    v.    Traphagan,    6    N.    J.      N.  J.  Eq.  9. 

Eq.  200.  7.   Florence    v.    Paschal,    48    Ala. 

4.  Morris  Canal  Co.  v.  Bartlett,  3  458.    See  State  v.  Allen,  33  Ala.  422. 
N.  J.  Eq.  9.  8.  Newton  M'f'g  Co.  v.  White,  47 

5.  Hanna    v.    Curtis,   1   Barb.   Ch.  Ga.  400. 

(N.  Y.)    263.  9.  Fadely  v.  Tomlinson,  41  W.  Va. 

6.  Brown  v.  Winans,   11  N.  J.  Eq.       606,  24  S.  E.  645. 

516 


Dissolution.  §  336 

and  not  dissolve  the  injunction  without  notice  to  plaintiff,  except 
when  it  is  necessary  to  save  the  party  enjoined  from  serious  loss.10 
Such  a  motion  to  dissolve  without  notice  could  also  be  made  to  the 
general  term,  in  cases  where  there  was  necessity  for  immediate 
action,  and  where  delay  would  cause  irreparable  injury  to  the 
party  enjoined,11  and  may  now  be  made  to  a  term  of  the  Appel- 
late Division  of  the  Supreme  Court.lla  But  such  a  motion 
cannot  be  made  to  another  judge  without  notice,  without 
proof  by  affidavit  that  the  granting  judge  is  absent  or  dis- 
abled.12 Where  a  notice  states  that  the  motion  to  dissolve 
will  be  "  based  upon  the  papers,  pleadings  and  records  in 
the  cause,  and  upon  affidavits  hereafter  to  be  filed,"  it  is  not 
error  for  the  court  to  admit  in  evidence,  at  the  hearing  of  the 
motion,  an  answer  filed  by  the  defendants  after  the  notice  is  given ; 
for  even  if  the  notice  had  the  effect  of  confining  defendant  to 
the  use  of  such  pleadings  as  were  on  file  at  the  time  it  was  given, 
the  court  might,  in  its  discretion,  hear  any  other  evidence  which 
would  aid  it  in  arriving  at  the  real  facts.13  A  notice  of  a  motion 
to  dissolve,  given  at  the  statutory  time,  though  at  a  time  when 
the  court  has  no  jurisdiction  of  the  case,  is  sufficient  if  the  court 
has  jurisdiction  when  the  motion  is  made.14     Where  a  motion  to 

10.  Peck  v.  Yorks,  41  Barb.  (N.  Hun  (N.  Y.),  231,  per  Learned,  C. 
Y.)  547;  Bruce  v.  Delaware,  etc.,  J.:  "As  the  judge  who  grants  an 
Canal  Co.,  8  How.  Pr.  (N.  Y.)  440;  injunction  may  have  acted  injudi- 
National  Gas  Light  Co.  v.  O'Brien,  ciously,  the  Code  provides  that  upon 
38  How.  Pr.  (N.  Y.)  271.  And  see  an  ex  parte  application  he  may  dis- 
O'Connor  v.  Starke,  59  Miss.  481.  solve  this  injunction,  thus  giving  an 

11.  Gere  v.  New  York  Central,  opportunity  to  the  aggrieved  party 
etc.,  R.  Co.,  38  Hun  (N.  Y.),  231,  per  to  show  to  the  judge  the  mistake  he 
Learned,  C.  J. :  "  We  are  of  the  may  have  made.  But  very  wisely 
opinion  that  the  privilege  given  by  such  an  ex  parte  application  cannot 
section  626  of  the  Code  to  make  such  be  made  to  another  judge,  else  there 
a  motion  before  the  general  term,  ex  would  be  a  conflict  of  authority." 
parte,  was  intended  to  afford  an  op-  1,3.  Younglove  v.  Steinman,  80  Cal. 
portunity   to  obtain  relief  in   special  375,  22  Pac.  189. 

cases  where  there  was   necessity  for  14.  Younglove     v.     Steinman,     80 

immediate  action."  Cal.  375,  22  Pac.  189.    In  California, 

11a.  N.  Y.  Code  Civ.  Proc,  §  626.  when   a  defendant  moves  to   dissolve 

12.  N.  Y.  Code  Civ.  Pro.,  §  626;  an  injunction  granted  on  the  ex  parte 
Gere    v.    N.    Y.    Central    R.    Co.,    38  application    of    plaintiff,    and    offers 

517 


§  337  Dissolution. 

dissolve  an  injunction  is  made  during  term  time,  no  notice  is 
necessary.15  If  the  equity  judge  has  allowed  an  interlocutory  in- 
junction, which  afterwards  clearly  appears  to  him  to  have  been 
improperly  allowed,  he  may,  of  his  own  motion,  set  it  aside  at  any 
time,  without  any  notice  having  been  given  of  an  application  to 
dissolve.  The  statute,  requiring  eight  days'  previous  notice  of  a 
motion  to  dissolve  an  injunction,  has  reference  to  applications  to 
dissolve  made  by  a  party.  But,  on  appeal  from  an  order  of  dis- 
solution, made  under  such  circumstances,  the  appellate  court  will 
consider  only  the  reasons  assigned  in  the  court  below,  for  its  judi- 
cial action.16 

§  337.  Who  may  apply  for  dissolution — Under  the  provisions 
of  the  New  York  Code  of  Procedure,  which  authorize  "  the  party 
enjoined  "  to  apply  for  an  order  dissolving  the  injunction,17  it 
has  been  held  that  a  person  who  is  prevented  by  the  injunction 
from  receiving  money  he  would  otherwise  be  entitled  to  take, 
may  apply  for  the  order  of  dissolution,  though  the  only  manner 
in  which  he  was  enjoined  from  receiving  the  money  was  that  others 
were  enjoined  from  paying  it  to  him.18  It  is  also  thought  that 
any  party  who  is  directly  injured  by  an  injunction  should  be 
allowed  to  move  for  its  dissolution,  under  the  general  principle  that 
every  one  is  entitled  to  relief  who  is  deprived  of  his  rights  by  an 
improvident  order  of  the  courts,  and  that  no  court  should  allow 

evidence  to  overcome  plaintiff's  prima  granting   an    injunction   may   be   va- 

facie  case,  especially  when   he  relies  cated.      Temple  J.,  dissenting.      Hef- 

upon  the  fact  that  since  the  issuance  flon  v.  Bowers,  72  Cal.  270,   13  Pac. 

of  the  injunction  the  principal  thing  690.     See,  also,  Falkinburg  v.  Lucy, 

complained  of  has  been  abated,  plain-  35  Cal.  52;  Delger  v.  Johnson,  44  Cal. 

tiff  is  entitled  to  notice,  and  should  182;  Hiller  v.  Collins,  63  Cal.  235. 

be  permitted  to  support  with  evidence  15.    Williams    v.    Cooper,    14    Ky. 

the  prima  facie  case,  which  was  all  Law,  284,  20  S.  W.  229. 

he  was  required  to  make  in  the  first  16.  Conover  v.  Ruckman,  33  N.  J. 

place.     The  manner  of  procuring  the  Eq.  303. 

dissolution  is  not  governed  by  Code  17.  N.  Y.  Code  Civ.  Pro.,  §§  626, 

Civ.  Pro.,   §   937,   providing  that   ex  627. 

parte  orders  may  be  vacated  without  18.  Landers  v.  Fisher,  24  Hun  (N. 

notice,  but  by  section   532,   prescrib-  Y. ) ,  648. 
ing   the   manner   in   which   an   order 

518 


Dissolution.  §  337a 

itself  to  be  made  the  instrument  of  wrong,  especially  where  fraud 
and  collusion  are  suspected,  and  where  trusts  and  relations  of  con- 
fidence are  involved.19  The  general  rule,  however,  would  seem  to 
be  that,  as  no  one  but  a  party  to  a  suit  can  make  a  motion  in  it, 
except  for  the  purpose  of  being  made  a  party,  an  injunction  against 
a  defendant  to  restrain  him  from  receiving  money  in  his  attor- 
ney's hands,  or  from  permitting  it  to  be  paid  to  any  one  on  his 
behalf,  will  not  be  dissolved  on  motion  of  the  attorney.20  And 
ordinarily  when  an  injunction  is  obtained  against  a  trustee,  the 
cestui  que  trust  has  no  right  to  be  heard  on  the  motion  to  dissolve.2' 

§  337a.  Same  subject;  where  defendant  in  contempt. — Where 

a  defendant  is  in  contempt  for  the  violation  of  an  injunction,  it 
has  been  decided  that  he  cannot  be  heard  on  a  motion  to  dissolve 
the  injunction  until  he  has  purged  the  contempt.22  But  in  a  case 
in  New  York  it  is  decided  that  when  a  defendant,  while  in  con- 
tempt for  violation  of  an  injunction,  moves  for  its  dissolution,  and 
is  entitled  on  the  merits  thereto,  his  motion  should  be  granted  on 
payment  of  the  costs  of  the  proceedings  taken  for  his  punishment.23 
And  in  another  case  in  New  York  it  is  held  that  it  is  no  answer 
to  a  motion  to  dissolve  an  injunction  that  the  defendant  has  vio- 
lated it.24  In  a  more  recent  case  in  New  York  it  is  decided  that 
in  so  far  as  a  motion  to  dissolve  appeals  to  the  favor  of  the  court, 
it  should  not  be  granted  where  the  party  making  it  has  been  guilty 
of  contempt.25  And  it  was  declared  by  the  court  in  this  case  that 
where  an  affidavit  clearly  disclosed  a  violation  of  the  injunction, 
the  court  might  consider  that  fact  upon  an  application  to  dissolve, 
although  the  defendant  may  not  formally  have  been  put  in  con- 

19.  Lowber  v.  New  York,  26  Barb.  Prac.  (N.  Y.)  225;  Faderly  v.  Tom- 
(N.  Y.)  262;  Gould  v.  Mortimer,  16  linson,  41  W.  Va.  606,  24  S.  E.  645. 
Abb.  Pr.  (N.  Y.)  448;  Dwight's  Case.  23.  Field  v.  Chapman,  13  Abb. 
15  Abb.  Pr.  (N.  Y.)   259.  Prac.    (N.  Y.)    320. 

20.  Linn  v.  Wheeler,  21  N.  J.  Eq.  24.  Smith  v.  Reno,  6  How.  Prac. 
231.  (N.  Y.)    124,  disapproving  Knom  v. 

21.  Ball     v.     Tunnard,     Madd.     &  Hogan,  4  How.  Prac.  (N.  Y.)  225. 
Geld.  275.  25.  Michel  v.  O'Brien,  6  Misc.  R. 

22.  Jacoby  v.  Goetter,  Weil  &  Co.,  (N.  Y.)   408. 
74  Ala.  427;  Krom  v.  Hogan,  4  How. 

519 


■§§  337b,  338  Dissolution. 

tempt  by  a  direct  proceeding  for  tbat  purpose.26  In  a  case  in 
Wisconsin  it  is  also  beld  that  a  party  against  whom  an  injunction 
is  issued  upon  an  ex  parte  application  has  the  legal  right  to  demand 
a  hearing  upon  the  question  of  the  regularity  and  propriety  of 
issuing  the  same,  and  that  the  fact  that  he  may  have  violated  such 
injunction  does  not  deprive  him  of  that  right.27 

§  337b.  Same  subject  continued. — In  this  connection  it  has 
been  decided  that  while  a  party  is  in  contempt  for  disobedience 
to  an  injunction,  he  cannot  properly  have  a  hearing  on  a  motion 
for  the  dissolution,  yet  when  the  nature  and  extent  of  the  punish- 
ment to  be  inflicted  for  such  contempt,  depend  on  the  determination 
of  the  question  whether  the  injunction  shall  be  continued  or  not 
and  involves  essentially  the  inquiry  whether  it  was  not  in  the  first 
instance  inprovidently  granted  the  hearing  may  be  allowed.28  And 
it  is  held  to  be  error  on  the  part  of  the  court  to  refuse  to  allow  a 
party  to  move  for  a  dissolution  of  an  injunction  on  the  ground  that 
he  is  in  contempt  in  violating  it,  where  no  notice  of  contempt  pro- 
ceedings has  been  given  to  him  in  order  that  he  may  have  an 
opportunity  to  prepare  his  defense.29 

§  338.  Dissolution  by  whom  granted. — Unless  the  necessity 
is  so  urgent  as  to  require  immediate  action,  an  injunction  will 
not  be  modified,  changed  or  set  aside,  except  by  the  judge  who 
granted  it.30    An  equity  judge,  however,  who  has  allowed  an  inter- 

26.  Michel  v.  O'Brien,  6  Misc.  R.  28.  Crabtree  v.  Baker,  75  Atl.  91, 
(N.  Y.)  408.  Compare  Smith  v.  51  Am.  Rep.  424;  Endicott  v.  Mathis, 
Austin,  1  Code  R.  N.  S.  (N.  Y.)  137.  9  N.  J.  Eq.  110. 

27.  Kaehler  v.  Dobberpahl,  56  Wis.  29.  State  v.  Clancy,  24  Mont.  359, 
497,  14  N.  W.  631.     The  court  said,  61  N.  E.  987. 

"  But   a   party    in    contempt   is   not  30.  Klein  v.  Fleetford,  35  Fed.  98. 

deemed  by  the  courts  an  outlaw,  nor  In   this  case   Bremer,   J.,   refused  to 

do  courts  disregard  his  legal  rights  modify  an  injunction  made  by  a  dis- 

pending   proceedings    to     punish   for  trict  judge,  though  the  relief  asked 

such  contempt.    The  rule  seems  to  be  for  would  have  been  proper,  because 

that  while  in  contempt  the  courts  will  the  case  was  not  an  urgent  one,  but 

not  grant  him  any  favors  but  it  will  he  overruled   the  motion  pro  forma, 

see    that    his    legal    rights    are    pro-  giving  leave  to  renew  it  before  the 

tected."     Per  Taylor,  J.  district  judge  as  soon  as  he  returned. 

520 


Dissolution.  §  339 

locutory  injunction  which  subsequently  clearly  appears  to  him  to 
have  been  improperly  allowed  may  of  his  own  motion  afterwards 
dissolve  the  injunction  and  it  is  held  that  a  statute  requiring  notice 
in  case  of  an  application  to  dissolve  is  not  necessary.  In  such  a 
case  it  is  said  that  inasmuch  as  it  was  in  the  discretion  of  the  judge 
in  the  first  instance  to  refuse  the  injunction,  he  may,  in  his  dis- 
cretion, set  aside  the  allowance  of  it  if  he  is  satisfied  that  it 
should  not  have  been  allowed.31  In  South  Carolina  where 
one  circuit  judge  has  issued  a  temporary  injunction  restraining 
the  levy  of  a  township  tax  until  further  orders  of  the  court,  with 
leave  to  other  persons  interested  to  become  parties  and  move  for  a 
dissolution  thereof,  another  circuit  judge  has  jurisdiction  to  dis- 
solve the  injunction  upon  motion  of  such  new  party.  This  would 
not  be  a  review  and  reversal  by  one  circuit  judge  of  the  acts  of  his 
predecessor.32  The  Supreme  Court  of  South  Carolina,  though  hav- 
ing power  under  the  State  constitution  to  issue  writs  of  injunction 
and  such  other  remedial  writs  as  may  be  necessary  to  give  it  a 
general  supervisory  control  over  the  other  courts  of  the  State,  has 
no  power  to  dissolve  an  injunction  granted  on  circuit.33  A  tem- 
porary injunction,  granted  without  notice,  by  a  probate  judge,  in 
the  absence  of  the  district  judge,  may  be  dissolved  by  the  district 
judge,  upon  notice,  at  any  time  before  trial.34 

§  339.  Dissolution   at    chambers ;    in    vacation ;    notice In 

Louisiana,  an  injunction  cannot  be  dissolved  at  chambers  without 
notice.35  The  South  Carolina  Code  provides  that  "  no  order  to 
stay  proceedings  for  a  longer  time  than  twenty  days  shall  be 
granted  out  of  court  except  on  notice  to  the  adverse  party ;" 3* 
but  where  defendant  petitioned  to  vacate  an  ex  parte  order  grant- 
ing an  injunction,  within  twenty  days  after  it  was  made,  it  was 

31.  Conover  v.   Rucksman,   33  N.  33.  State  v.  Westmoreland,  27  S. 
J.  Eq.  303.  C.  625,  7  S.  E.  256. 

32.  Bouknight  v.  Davis,  33  S.  C  34.  Kemper  v.  Campbell,  45  Kan. 
410,  12  S.  E.  96.    This  practice  is  au-  529,  26  Pac.  53. 

thorized  by  section  246  of  the  S.  C.  35.  Gravais    v.    Falgoust,    34    La. 

Code.  Ann.  99. 

36.  Code  Civ.  Pro.,  §  402. 

521 


§  340  Dissolution. 

held  that  the  defect  was  cured.117  And  it  is  not  error  to  vacate  a 
restraining  order,  no  cause  being  shown  to  the  contrary,  when,  at 
the  time  and  place  fixed,  by  consent,  for  the  hearing  at  chambers, 
the  party  who  obtained  the  order  more  than  twenty  days  before 
fails  to  appear,  either  in  person  or  by  attorney.38  Where  an  in- 
junction has  been  awarded  after  notice,  it  is  error  to  dissolve  the 
same  in  vacation,  under  the  Colorado  Code,  but,  on  an  appeal 
from  the  final  judgment  in  the  action,  such  error  is  not 
ground  for  reversal,  unless  it  appears  that  such  premature  dis- 
solution was  prejudicial  to  the  substantial  rights  of  the  plaintiff 
in  the  final  adjudication.39  In  Virginia  it  is  decided  that  where 
a  motion  is  made  in  vacation  for  the  dissolution  of  an  injunction 
the  court  should  not  determine  the  case  on  its  merits  where  the 
consent  authorizing  the  court  to  so  act  has  not  been  entered  of 
record.40 

§  340.  Abatement    of    injunction    on    plaintiff's    death The 

equitable  right  subsisting  in  a  plaintiff,  together  with  the  equitable 
remedy  by  injunction  with  which  he  has  been  seeking  to  enforce 
that  right,  devolves  at  his  death  upon  his  representatives.  Thus, 
where  the  sole  plaintiff  in  an  action  for  a  mandatory  injunction  to 
remove  an  obstruction  to  the  access  of  light  died  six  months  after 
the  issue  of  the  writ,  it  was  held  that  as  the  remedy  of  injunction 
affected  realty,  it  passed  to  the  devisee  of  the  realty.41  It  seems  in 
such  cases  that  the  abatement  of  the  suit  by  complainant's  death 
does  not  operate,  in  itself,  as  a  dissolution  of  the  injunction  with- 
out an  order  of  court  to  that  effect;42  but  the  defendant  is  entitled 
to  a  rule  upon  the  representative  of  deceased  to  revive  the  action, 
or  that  the  injunction  will  be  dissolved.43     Ordinarily  the  injunc- 

37.  Meinhard  v.  Youngblood,  37  S.       43  Ch.  D.  607. 

C.  223,  15  S.  E.  947.  42.  Collier  v.  Bank  of  Newbern,  21 

38.  Coward  v.  Chastain,  99  N.  C.  N.    C.    (1     Dev.    &     Bat.    Eq.)    328, 
443,  6  S.  E.  703.  wherein  it  is  said  that  the  death  of  a 

39.  Roberts    v.    Arthur,    15   Colo.  party  to  a  suit  in  equity  does  not 
456.  24  Pac.  922.  vacate  nor  render  inoperative  the  or- 

40.  Mount  v.   Radford  Trust  Co.,  ders  made  in  the  cause  while  the  par- 
93  Va.  427,  25  S.  E.  244.     Decided  ties  were  regularly  before  the  court, 
under  Va.  Code.  §  3427.  43.  Hawley    v.    Bennett,    4    Paige 

41.  Jones  v.  Simes    (1890),  L.  R.  (N.  Y.),  163. 

522 


Dissolution. 


§340 


tion  in  such  cases  should  not  be  dissolved  without  notice  to  the 
representatives  of  the  deceased,  if  such  notice  is  practicable.44 


44.  Walsh  v.  Smyth,  3  Bland,  Ch. 

(Md.)  9,  23,  per  Bland,  Ch.:  "It 
has  been  urged  that  so  much  of  this 
decree  as  dissolves  the  injunction  has 
been  improvidently  made,  because  it 

was  awarded  in  a  case  to  which  the 
intestate  of  the  petitioner  had  been  a 
party;  and  that  since  his  death  it 
has  been  dissolved  without  his  repre- 
sentative having  been  made  a  party, 
or  being  notified  to  revive.  It  is  true 
that  an  abatement  of  a  suit,  in  which 
an  injunction  had  been  granted,  does 
not  in  strictness  immediately  and  of 
itself  dissolve  the  injunction;  because 
the  injunction,  as  a  judgment  of  the 
court,  gives  a  present  vested  right 
which  must  stand  until  reversed  or 
revoked  by  the  court  itself.  And  it 
is,  therefore,  a  general  rule,  founded 
on  the  liberality  of  the  court,  that,  in 
all  such  cases  of  abatement,  to  pre- 
vent the  representatives  of  the  de- 
ceased from  being  taken  by  surprise, 
notice  must  be  given  to  them  to  re- 
vive, or  that  the  injunction  be  dis- 
solved. White  v.  Hayward,  2  Ves. 
Sen.  461.  In  this  the  injunction  has 
been  dissolved  without  any  such  no- 
tice, and  therefore  the  only  question 
now  is,  whether  looking  to  all  the  cir- 
cumstances of  this  case  it  might  have 
been  dissolved  without  any  actual  no- 
tice to  the  legal  representatives  of 
the  late  plaintiff.  According  to  the 
English  authorities  such  a  notice, 
when  required  to  be  given,  is  in  gen- 
eral A'ery  peremptory  and  short,  usu- 
ally not  more  than  a  week.  Stuart  v. 
Ancell,  1  Cox  Ch.  411 :  Hill  v.  Hoare, 
2  Cox  Ch.  50.  But  the  deceased  party 
may  have  in  fact  no  legal  representa- 
tives, or  they  mav  be  numerous  and 


dispersed,  or  they  may  reside  abroad, 
so  that  it  would  be  impossible  or  very 
difficult  to  give  them  actual  notice. 
Carter  v.  Washington,  1  Hen.  &  M. 
203.  Where  the  representative  was 
not  a  resident  of  this  State,  I  have  or- 
dered notice  to  be  entered  on  the 
docket  to  revive  before  the  next  term, 
or  that  the  injunction  then  stand  dis- 
solved; and  in  that  case  I  declared 
that  the  lapse  of  time,  nine  years 
since  the  abatement,  should  be  taken 
into  consideration.  Griffith  v.  Bron- 
augh,  1  Bland,  Ch.  547.  Here  the 
abatement  took  place  more  than 
thirty-two  years  ago,  and  there  is 
strong  reason  to  believe  that  Walker, 
the  administrator,  must  have  known 
of  the  institution  of  this  suit.  But 
Walker  has  been  dead  more  than 
twenty  years,  and,  during  all  that 
time,  and  when  this  decree  was 
passed,  there  was.  in  fact,  no  one  to 
whom  notice  could  have  been  given 
by  these  defendants  to  revive  or  have 
the  injunction  dissolved.  A  notice 
entered  on  the  docket  would  have 
been  nugatory,  and  a  mere  waste  of 
time.  So  that,  if  it  could  not  have 
been  dissolved  without  notice  of  any 
kind,  after  such  a  lapse  of  time,  it 
must  have  been  allowed  to  stand,  in 
effect,  as  a  perpetual  injunction.  I 
am,  therefore,  of  opinion,  that  under 
such  circumstances  the  great  lapse  of 
time  must  of  itself  be  deemed  suffi- 
cient ground  to  entitle  any  of  the  sur- 
viving parties,  or  the  representative 
of  a  defendant  to  claim  and  move 
for  an  immediate  and  total  dissolu- 
tion of  the  injunction."  Willis  v. 
Yates,  8  Cond.  Ch.  512. 


523 


§§  341,  341a,  342  Dissolution. 

§  341.  Abatement  by  death  of  defendant. — Where  an  injunc- 
tion is  directed  to  the  defendant  in  personam,  as  it  is  ordinarily, 
it  abates  on  his  death  by  operation  of  law.45  When  an  injunction 
has  abated  by  the  defendant's  death,  the  court  will  make  a  rule 
that  it  stand  dissolved  unless  the  complainant  revive  it  against  the 
defendant's  representatives.46  So  in  a  case  in  New  York  it  is 
decided  that  if  pending  an  injunction  a  suit  abates  by  the  death 
of  the  defendant,  the  representatives  of  the  defendant  who  was 
restrained  may  have  an  order  that  the  complainant  or  his  repre- 
sentatives revive  within  such  reasonable  time  as  may  be  fixed  by 
the  court  for  that  purpose,  or  that  the  injunction  will  be  dissolved.47 

§  341a.  Continuance  of  motion  to  dissolve. — It  is  a  general 

rule  not  to  continue  a  motion  to  dissolve  an  injunction  unless  from 
some  very  great  necessity,  because  the  court,  is  always  open  to 
grant,  and,  of  course,  to  reinstate  an  injunction  whenever  it  shall 
appear  proper  to  do  so ;  and  because,  too,  the  plaintiff  should  always 
be  ready  to  prove  his  bill.48 

§  342.  Second  motion  to  dissolve. — A  defendant  who  has  once 
moved  unsuccessfully  for  the  dissolution  of  an  injunction  cannot 
make  a  second  motion  upon  the  same  papers  without  obtaining 

45.  Johnson  v.  Elwood,  82  N.  Y.  ceeded  in  maintaining  a  right  to  the 

362,  365,  per  Miller,  J.:     "The  acts  injunction  order  after  his  death,  no 

of  the  defendant  in  interfering  with  judgment    could    have    been    entered 

the  lots  in  question  were  of  a  char-  against  the  defendant;   nor  is  it  ap- 

acter  purely  personal  to  himself,  and  parent  in  what  manner  his  represen- 

the  restraint  upon  him  by  injunction  tatives  could  have  been  restrained  in 

was  at  an  end  upon  his  decease,  and  this  action." 

the  maxim,  actio  personalis  monitur  46.  Cummins  v.  Cummins,  8  N.  J. 

cum  persona  applies.     As  the  action  Eq.  173;   White  v.  Fitzhugh,   1  Hen. 

became   abated   and   did   not  survive  &  M.    (Va.)    1.     See  Hawley  v.  Ben- 

upon  the  death  of  defendant  against  nett,  4  Paige,  163;  Hill  v.  Hoare,  2 

his    heirs    or    representatives,    there  Cox  Ch.  50. 

was  no  authority  in  the  court  to  di-  47.  Leggett  v.  Dubois,  2  Paige  Ch. 

rect   its    discontinuance   or  to   make  (N.  Y.)  211. 

any    other    order    than    that    it    be  48.  Steelsmith   v.   Fisher  Oil   Co., 

deemed  abated  by  such  death.     It  is  47  W.  Va,  391,  135  S.  E.  15. 
evident  that  if  the  plaintiff  had  sue 

524 


Dissolution.  §§  342a,  343 

leave  of  court.49  In  New  York  if  a  first  motion  is  denied,  a  second 
on  substantially  the  same  facts  must  be  made  to  the  same  judge 
or  to  the  court.  If  it  is  made  to  another  judge  out  of  court,  an 
order  granted  thereon  must  be  vacated  by  the  judge  who  made  it, 
or,  if  he  is  unable  to  hear  the  application,  by  any  judge  of  the 
court  on  proof  of  the  facts.50  And  a  motion  addressed  to  discretion 
cannot  be  renewed  on  the  same  facts  unless  leave  is  obtained.51 
But  the  decision  of  a  court  dissolving  an  injunction  does  not  pre- 
clude it  from  granting  a  perpetual  injunction  on  the  same  state 
of  facts,  at  the  final  hearing  of  the  cause  on  the  merits.52 

§  342a.  Same  subject ;  statutes  as  to  construed. — A  hearing  on 
a  petition  for  a  temporary  injunction  and  the  allowance  of  the  writ 
after  the  hearing  is  not  equivalent  to  a  hearing  on  a  motion  to  dis- 
solve within  the  meaning  of  a  Code  provision  that  only  one  motion 
to  dissolve  or  modify  an  injunction  upon  the  whole  cause  shall  be 
allowed  and  therefore  a  motion  to  dissolve,  made  after  the  granting 
of  the  injunction,  should  not  be  overruled  on  this  ground,  it  being 
in  fact  the  first  and  only  motion  made.53  And  though  it  is  pro- 
vided by  Code  that  only  one  motion  to  dissolve  an  injunction  may 
be  made  yet  where  a  judge  who  grants  an  injunction  overrules  such 
a  motion,  with  leave  to  renew  and  present  the  same  to  another 
court  in  which  the  main  cause  is  pending,  the  renewal  of  the 
motion  in  the  latter  court  is  not  another  motion  within  the  mean- 
ing of  such  a  provision.54 

§  343.  Restitution  by  plaintiff  on  dissolution. — Where  the  act 
sought  to  be  enjoined  is  done  before  the  complainant's  bill  is  filed, 
and  he  knows  it  is  already  done,  a  preliminary  injunction  issued 
to  prevent  the  act  is  improvident  and  will  properly  be  dissolved  on 

49.  Lowry    v.     Chautauqua  Bank,  to   use    affidavits    in    his    possession. 
Clarke's  Ch.    (N.  Y.)   67.  Witmark  v.  Herman,  44  N.  Y.  Super. 

50.  Code  Civ.  Pro..  §  776.  144. 

51.  Melville  v.  Matthewson,  49  N.  52.  Banks  v.  American  Tract  Soc, 
Y.  Super.  388.  Leave  to  renew  is  4  Sandf.  Ch.  (N.  Y.)  438. 
usually  granted  upon  the  denial  of  a  53.  Hinkle  v.  Saddler,  97  Iowa, 
motion  for  a  defect  in  the  moving  526,  66  N.  W.  765.  See  Westerly 
papers.  Dollfus  v.  Frosch,  5  Hill,  Waterworks  v.  Westerly,  77  Fed.  783. 
493;  Wood  v.  Kimball,  9  Abb.  Pr.  54.  Carrothers  v.  Newton  Mineral 
419.  But  not  where  a  party  delib-  S.  Co.,  61  Iowa,  681,  17  N.  W.  43. 
erately  elects  on  the  first  motion  not 

525 


§  344  Dissolution. 

the  hearing,  and  if  plaintiff  in  such  a  case  has  obtained  an  advan- 
tage by  acting  when  his  opponents'  hands  were  tied,  he  will  be 
compelled  to  relinquish  it  so  that  the  original  status  may  be  re- 
stored. Thus  where  a  preliminary  injunction  forbidding  the 
defendant  from  taking  possession  of  certain  land  is  improvidently 
issued  after  he  has  taken  possession,  and  the  complainant  retakes 
possession  pending  the  injunction,  defendant  is  entitled,  on  disso- 
lution of  the  injunction,  to  a  writ  of  restitution.55  For  a  complain- 
ant thus  to  violate  his  own  injunction,  when  the  evident  purpose 
of  it  is  to  preserve  the  existing  status  until  a  final  adjudication,  is 
such  an  abuse  of  the  process  of  the  court  as  warrants  its  dissolu- 
tion.56 Upon  the  dissolution  of  an  injunction  against  defendant 
for  forcible  entry,  the  court  should,  on  his  motion,  award  him  a 
writ  of  restitution  to  restore  to  him  the  possession  which  he 
yielded  under  the  injunction.57 

§  344.  Reinstatement  on  dissolution. — Provisions  of  the  Ken- 
tucky Civil  Code  for  a  motion  to  reinstate  an  injunction  which  has 
been  dissolved  on  motion,  have  been  construed  as  applying  only 
where  the  dissolution  has  taken  place  in  advance  of  the  final  judg- 
ment in  the  action,  for  in  such  a  case  there  can  be  no  appeal 

55.  Lake  Shore,  etc.,  R.  Co.  v.  Tay-  lawfully    in    possession—those    ques 

lor    134  111.  603,  25  N.  E.  588,  per  tions  cannot  be  determined  here.     It 

Scholfield,   C.   J. :      "  The  only    func-  is  sufficient  for  the  present  that  ap- 

tion   of     an     injunction     is    to    stay  pellee  after  having  tied  the  hands  of 

threatened    action    and    suspend    the  appellant  as  to  the  assertion  of  its 

conflicting  claims  of  right  of  the  re-  claim  of  right,  and  while  they  were 

spective  parties  where  they  then  are  so  tied,  has  changed  the  status  quo 

until    they   can   be   properly   adjudi-  of  the  parties  in   this   respect.     She 

cated.      2    Daniell,    Ch.    Pr.    5th    ed.  must     restore    things     to    the    same 

1639,  and  note.    And  so  it  must  nee-  plight   and    condition,    as    nearly    as 

essarily    follow    that    to    allow    one  possible,  in  which  they  were  when  the 

party  to  obtain  any  advantage  by  act-  judge   made  the  order  upon  her  bill 

ing   when   the   hands   of   the   adverse  that    an    injunction    issue."      Citing 

party  are  thus  tied  by   the  writ  or  Hawks     v.     Champion,     Cary,     51; 

the  order  for  it,  is  an  abuse  of  legal  Dowche  v.  Perrot,  Cary,  63;   Hill  v. 

process  which  cannot  be  tolerated.  It  Portman,  Cary,  140. 
is   immaterial   here   in   whom   is   the  56.  Van  Zandt  v.   Argentine  Min- 

legal  title,  or  whether  when  appellant  ing  Co.,  2  McCrary,  642. 
built  its  fence  it  was  a  trespasser  or  57.  Wangelin  v.  Goe,   50  111.  459. 

526 


Dissolution.  §  344 

because  no  final  judgment  has  been  rendered ;  but  if  the  injunction 
is  dissolved  upon  rendering  the  final  judgment,  the  plaintiff's  only 
remedy  is  by  an  appeal  of  the  whole  case;58  and  in  such  a  case  a 
motion  to  reinstate  is  not  in  order,  even  though  the  judgment  give 
leave  to  plaintiff  to  apply  for  a  reinstatement  of  the  injunction 
and  continue  it  in  force  for  a  specified  time  after  the  judgment 
is  rendered.59  Where  an  order  dissolving  an  injunction  has  been 
affirmed  on  appeal,  a  motion  in  the  appellate  court  to  reinstate 
the  injunction  on  averments  proposed  to  be  inserted  in  the  bill  in 
order  to  give  it  equity  according  to  the  ruling  of  the  appellate 
court  will  be  denied.60  A  demurrer  to  a  bill  to  reinstate  an  injunc- 
tion having  been  overruled  and  the  bill  sustained,  the  court  refused 
to  reinstate  the  injunction,  which  had  been  properly  dissolved.  It 
was  held  no  error,  where  the  questions  arising  from  the  allegations 
of  the  bill  had  never  been  presented  before  the  court  for  hearing.61 
In  England  it  is  deemed  irregular  for  the  court,  upon  a  defendant's 
motion  to  dissolve  an  injunction  obtained  against  him  ex  parte, 
to  grant  a  new  injunction,  and  especially  so  if  the  new  injunction 
is  not  granted  in  the  terms  of  the  prayer  of  the  bill.62  Where  an 
injunction  has  been  dissolved  for  want  of  equity  in  the  bill,  the 
court  will  not  grant  an  ex  parte  injunction  upon  an  amended  bill, 
or  upon  a  new  bill  supplying  that  equity.63 

58.  Pendergest  v.  Heekin,  94  Ky.  61.  Spencer  v.  Jones,  85  Va.  172, 
384,  22  S.  W.  605.  7  S.  E.  180. 

59.  Elizabethtown,  L.  &  B.  S.  R.  62.  Burdett  v.  Hay,  4  DeG.  J.  & 
Co.  v.  Ashland  &  C.  St.  Ry.  Co.,  94  S.  41. 

Ky.  478,  22  S.  W.  855.  63.  Hornor  v.  Leeds,  10  N.  J.  Eq. 

The    decision     of    the    court    dis-  86,  per  chancellor:     "  If  a  complain- 

solving    an     injunction     is     conclus-  ant  is  willing  to  swear  to  a  case  fit- 

ive  between     the     same     parties     in  ting   the    opinion    of    the    court,    the 

that    branch    of   the    court    on    any  rights   of   the   defendant   should   not 

application    for    its    revival    on    the  be  interfered  with  upon  such   a  bill 

same  state  of  facts ;  or  on  a  new  state  without   affording  the   defendant   an 

of  facts  except  upon  leave  first  had  opportunity  first  to  be  heard.     Any 

to  apply  a  new.     Banks  v.  American  other  practice  would  be  oppressive." 
Trust  Co.,  4  Sandf.  Ch.   (N.  Y.)   438. 

60.  Mack  v.  De  Bardelaben  C.  & 
I.  Co.,  90  Ala.  396,  8  So.  150. 


527 


§  345  Parties. 


CHAPTER  X. 

Parties. 

Section  345.  Parties  in  interest — Generally. 

346.  Parties  in  interest — Bringing  in — General  rule. 
346a.  Bringing  in  of  additional  parties — Amendments. 

347.  Proper  and  necessary  parties — Who  are. 

348.  Same  subject — Parties  defendant. 
348a.  Same  subject  continued. 

349.  Standing  as  party  through  injunction. 

350.  United  States  as  party. 

351.  State  as  party — Relators. 

352.  Same  subject. 

353.  Same  subject — Nuisances. 

354.  Cities  and  citizens. 

355.  Towns  as  parties. 

356.  Same  subject — Abutting  owners. 

357.  Attorney-general  as  plaintiff. 

358.  Corporations  as  parties. 

359.  Trustees — Receivers. 

360.  Sureties — Principals — Administrators. 

361.  Taxpayers  as  plaintiffs. 
361a.  Same  subject  continued. 

362.  Joinder  of  plaintiffs — Life  tenants. 

362a.  Joinder  of  plaintiffs — Life  tenants — Tenants  in  common. 

363.  Joinder  of  plaintiffs — Abutting  owners,  etc. 

364.  Misjoinder  of  plaintiffs. 

365.  One  or  more  for  all., 

366.  Injunctions  against  proceedings  at  law. 

367.  Same   subject — Joining   officers. 
367a.  Joining  officers  continued. 

368.  Joinder  of  defendants — Nuisance. 

369.  Same  subject — Bills  of  peace. 

370.  Same  subject — Frauds. 

371.  Joinder  of  patent  owner  as  defendant  where  licensee  sues. 

372.  Joinder  of  plaintiffs  at  law  as  defendants  in  equity. 

373.  Defect  of  parties  defendant. 

374.  Dismissal  for  want  of  necessary  parties. 

§  345.  Parties  in  interest;  generally. — Parties  in  interest  are 
those  legally  or  equitably  interested  in  the  subject  matter  or  result 
of-  the  suit,  but  they  must  have  a  present  substantial  interest  as 

528 


Paeties.  §  340 

distinguished  from  a  mere  expectancy.1  Thus,  on  a  creditor's  bill 
to  set  aside  a  deed  of  land  to  a  trustee,  in  trust  to  collect  and  pay 
rents  to  a  married  woman  during  her  life,  and  at  her  death  to  con- 
vey to  her  children,  on  the  ground  that  the  deed  is  in  fraud  of  the 
grantor's  creditors,  the  children  are  not  necessary  parties,  -but  the 
trustee  represents  their  contingent  interest,  and  a  decree  setting 
aside  the  deed  of  trust  is  as  binding  on  them  as  if  they  were  parties.2 
And  in  an  equitable  action  against  a  trustee,  for  an  accounting, 
a  corporation  to  which  the  trustee  has  transferred  trust  property, 
is  not  a  necessary  party  to  the  action,  where  its  title  is  not  ques- 
tioned and  no  relief  is  asked,  nor  any  facts  stated  which  would 
warrant  any  relief.3  In  another  case  defendant,  who  was  appointed 
stenographer  in  a  proceeding  for  the  removal  of  plaintiff  as  judge, 
afterwards,  on  application,  had  his  fees  taxed  against  plaintiff, 
and  judgment  rendered  against  plaintiff  therefor.  Plaintiff  sued 
to  restrain  the  execution  of  the  judgment  against  him  and  it  was 
held,  that  plaintiff  and  defendant  were  the  only  necessary  parties, 
and  that  the  relator,  in  the  original  proceeding  against  plaintiff, 
was  not  a  proper  party  to  the  suit,  as  he  was  not  a  party  to  the 
rule  to  tax  costs  and  had  no  interest  in  the  judgment  therein  which 
alone  was  enjoined.4 

§  346.  Parties  in  interest;  bringing  in;  general  rule. — It  is  a 

general  rule  that  all  persons  should  be  made  parties  to  a  suit  in 
equity  to  obtain  an  injunction  who  are  directly  interested  either 
in  obtaining  or  resisting  the  relief  asked  for  in  the  complainant's 
bill  or  granted  in  the  decree.5    It  is,  however,  said  that  the  courts 

1.  Green  v.  Grant,  143  111.  61,  73,  itself  having  an  interest  in  the  elee- 
32  N.  E.  369.  tion  9hould  be  made  a  party  to  the 

2.  Temple  v.  Scott,  143  111.  290,  32  bill.    Krecker  v.  Shirey,  2  Penn.  Dist. 
N.    E.    366;    American   Bible    Society  Reports,  24. 

v.  Price,  115  111.  644.  4.    Lazarus    v.    McGuirk,    42    La. 

3.  Zebley  v.  Farmers  Loan  <fe  Trust      Ann.  194,  8  So.  253. 

Co.,   139  N.  Y.  461,  34  N.  E.   1067.  5.     United      States.— Consolidated 

In  a  bill  in  equity  for  an  injunction  Water  Co.  v.  City  of  San  Diego,  93 

against    the    officers   of    an    incorpor-  Fed.  849,  35  C.  C.  A.  631. 

ated  church,  praying  for  their  remo-  Georgia. — Miller    v.   McDonald,    72 

val,   and   asking   for   a   new   election  Ga.  20. 

to  fill  the  vacancies,  the  corporation  Illinois. — Lussen    v.    Sanitary    Dis- 

529 
34 


§346 


Parties. 


are  not  inclined  to  favor  this  procedure  when  it  is  postponed  to  the 
hearing  in  the  appellate  court  and  that  it  will  not  be  listened  to 


trict,  192  111.  404,  61  N.  E.  544;  Tem- 
ple v.  Scott,  143  111.  290,  32  N.  E. 
366;  Hopkins  v.  Roseclare  Lead  Co., 
72  111.  373. 

Kansas. — Jeffries-Ba-Som  v.  Na- 
tion, 63  Kan.  247,  65  Pac.  226; 
Union  Terminal  R.  R.  Co.  v.  Board 
of  Commissioners,  52  Kan.  680,  35 
Pac.  224;  Leroy  Coal  &  M.  Co.  v. 
Crowl,  3  Kan.  App.  288,  45  Pac.  132. 

Mississippi. — Lemmon  v.  Dunn,  61 
Miss.  210. 

New  Jersey. — Butcher  v.  City  of 
Camden,  29  N.  J.  Eq.  478. 

New  York. — National  Park  Bank 
v.  Goddard,  131  N.  Y.  494,  30  N.  E. 
566;  New  York  Bank  Note  Co.  v. 
Hamilton  Bank  Note  E.  &  P.  Co., 
83  Hun,  593,  31  N.  Y.  Supp.  1060; 
Lawyer  v.  Cipperly,  7  Paige  Ch.  281. 
See  Shepard  v.  Manhattan  Ry.  Co., 
117  N.  Y.  442,  23  N.  E.  30;  Standard 
Fashion  Co.  v.  Siegel  Cooper  Co.,  30 
App.  Div.  564,  52  N.  Y.  Supp.  433. 

North  Carolina. — Oliver  v.  Dix,  21 
N.  C.  158. 

West  Virginia. — Colwell  v.  Prin- 
dle's  Adm'r,  11  W.Va.  307. 

It  is  said  by  the  United  States  Su- 
preme Court :  "  The  general  rule  in 
equity  is  that  all  persons  materially 
interested,  either  legally  or  bene- 
ficially, in  the  subject  matter  of  a 
suit  are  to  be  made  parties  to  it,  so 
that  there  may  be  a  complete  decree 
which  shall  bind  them  all.  By  this 
means  the  court  is  enabled  to  make 
a  complete  decree  between  the  par- 
ties, to  prevent  future  litigation,  by 
taking  away  the  necessity  of  a  mul- 
tiplicity of  suits,  and  to  make  it  per- 
fectly certain  that  no  injustice  is 
done  either  to  the  parties  before  it, 
or   to   others   who   are   interested    in 


the  subject  matter,  by  a  decree  which 
might  otherwise  be  granted  upon  a 
partial  view  only  of  the  real  merits." 
Minnesota  v.  Northern  Securities  Co., 
184  U.  S.  199,  235,  46  L.  Ed.  499,  22 
S.  Ct.  308.    Per  Mr.  Justice  Shiras. 

"  It  is  the  duty  of  complain- 
ant to  see  and  know  that  he  has  be- 
fore the  court  all  necessary  parties, 
or  his  decree  will  not  be  binding.  It 
is  the  policy  of  the  law  to  prevent  a 
multiplicity  of  suits,  and  where  the 
rights  of  all  persons  may  be  settled 
in  one  proceeding,  the  parties  should 
not  be  harrassed  by  other  proceed- 
ings." Hopkins  v.  Roseclare  Lead 
Co.,  72  111.  373.    Per  Walker,  J. 

In  an  action  to  perpetually 
enjoin  a  city  and  its  officers  and 
certain  county  officers  from  levying 
or  collecting  any  taxes  to  pay  inter- 
est on  certain  city  bonds,  and  to  have 
the  bonds  declared  null  and  void,  the 
bondholders  are  necessary  parties, 
and  the  action  cannot  be  maintained 
without  making  them  parties.  City 
of  Anthony  v.  State,  49  Kan.  246,  30 
Pac.  488. 

Where  an  action  is  brought  to 
enjoin  the  auditor  of  state  from 
issuing  a  certificate  of  indebtedness 
on  claims  issued  by  the  State  to 
L.,  and  to  compel  the  auditor  to  issue 
two  certificates  therefor,  one  to  plain- 
tiff and  one  to  L.,  and  L.  is  made  a 
party  defendant,  but  no  service  is 
made,  and  no  appearance  is  entered 
by  him,  the  court  cannot  render  a 
final  judgment  in  the  action  until  L. 
is  properly  summoned,  or  appears. 
McCarthy  v.  Marsh,  41  Kan.  17,  20 
Pac.  479.  See,  also,  Cassatt  v. 
Com'rs,  39  Kan.  505,  18  Pac.  517. 
Parties  to   actions  on  injunc- 


530 


Pakties.  §  346a 

if  there  are  sufficient  parties  before  the  court  who  are  amenable 
to  its  decree  to  enable  the  court  to  award  a  substantial  remedy.6 

§  346a.  Bringing  in  of  additional  parties ;  amendments. — 
According  to  the  practice  in  some  States  at  any  time  in  the  progress 
of  a  suit  in  equity,  any  person  whose  presence  in  the  suit  is  neces- 
sary to  a  full  and  final  adjudication  of  the  rights  of  the  parties, 
and  to  a  complete  determination  of  the  controversy  between  them, 
may  be  brought  in  as  a  party  on  motion  of  the  plaintiff,  or  by  the 
court  on  its  own  motion.7  So  where  a  son  having  the  same  name 
as  his  father,  is  by  mistake  made  a  defendant  and  enjoined  instead 
of  the  father,  it  is  proper  to  amend  the  complaint  and  summons 
by  bringing  in  the  representatives  of  the  father,  who  had  died 
before  the  action  was  begun,  and  continuing  the  injunction  as 
against  them.8  And  where  one  of  two  defendants  to  a  bill  in  equity 
prayed  an  injunction  against  complainant  and  subsequently  died, 
and  his  death  was  stated,  and  an  amendment  made  alleging  its 
consequences,  it  was  held  to  be  error  for  the  court  to  grant  an 
injunction  without  making  his  representative  a  party.9  Again, 
where  one  of  the  objects  of  a  bill  is  to  enjoin  a  judgment  recovered 
by  the  indorsee  of  a  note,  the  indorsee  is  a  necessary  party,  and 
if  he  die  pending  the  suit,  it  should  be  revived  against  his  personal 
representative.10  Necessary  parties  to  a  bill  may  also  be  brought 
in  by  amendment  after  an  injunction  has  been  granted.11  But 
while  it  is  proper  to  make  an  order  permitting  a  summons  and  com- 
plaint to  be  amended  by  bringing  in  additional  parties  as  defend- 

tion  bonds  have  been  considered  in  10.    Eldridge    v.    Turner,   11    Ala. 

chapter  V.      See   §§    184,    184a,   185,  1049. 

herein.  11.  Mayer  v.  Coley,  80  Ga.  207,  7 

6.  Peoples  Teleph.  &  Teleg.  Co.  v.  S.  E.  164,  per  Bleckley,  C.  J.:  "The 
East  Tenn.  Teleph.  Co.,  103  Fed.  212,  only  parties  defendant  to  the  bill  are 
43  C.  C.  A.  185.  See,  also,  Turpin  v.  Mayer  and  Ullman.  No  doubt  Cooley 
Dennis,  139  111.  274,  28  N.  E.  265.  is   a   necessary   party;    and   both   the 

7.  N.  Y.  Code  Civ.  Pro.,  §  452;  maker  of  the  bond  for  titles  and  the 
Pond  v.  Harwood,  139  N.  Y.  Ill,  34  mortgagor  are  proper  if  not  neces- 
N.  E.  768.  sary  parties  to  the  bill,  but  all  thess 

8.  Bergmann  v.  Salmon,  69  Hun,  can  be  added  by  amendment  and 
295,  23  N.  Y.  Supp.  482.  doubtless  will   be  before   the  hearing 

9.  Miller  v.  McDonald,  72  Ga.  20.  of  the  case  for  final  decree." 

531 


§  347  Pabties. 

ants,  yet  it  is  held  to  be  error  to  direct  that  the  undertaking  shall 
stand  as  security  for  the  new  defendants.12 

§  347.  Proper  and  necessary  parties ;  who  are. — A  life  tenant 
may  properly  bring  an  action  to  restrain  the  opening,  by  a  town, 
of  streets  through  the  premises  without  a  compliance  with  the 
statute  in  regard  thereto,13  or  to  restrain  a  nuisance.138.  And  to  en- 
join the  maintenance  of  a  ferry  within  a  certain  distance  of  an  estab- 
lished ferry  in  violation  of  a  statute  the  action  may  be  properly 
brought  by  one  who  is  a  tenant  in  common  and  in  sole  possession 
of  the  latter  ferry.14  An  insurer  of  a  damaged  cargo  may  also 
properly  maintain  a  suit  to  restrain  the  master  and  agents  from 
selling  the  same.15  And  an  owner  of  any  estate  as  well  as  the 
owner  of  the  dominant  tenement  may  invoke  the  aid  of  a  court 
of  equity  to  enforce  the  easement  in  the  servient  tenement.16  And 
it  has  been  decided  that  a  suit  for  an  injunction  may  be  main- 
tained by  minors.17  And  generally  it  is  decided  that  in  an  action 
which  seeks  to  enjoin  the  payment  of  illegal  allowances  by  a  public 
board  it  is  proper  to  make  such  persons  parties  as  it  is  needful  to 
hear  or  restrain.18  So  in  a  suit  by  the  holder  of  bonds  of  a  water 
company  to  restrain  a  municipality  from  fixing  the  rates  the  com- 
pany, which  is  under  contract  to  supply  water  to  the  municipality 
is  a  necessary  party.19  Again,  the  fact  that  a  person  has  a  pending 
petition  to  be  made  a  party  to  a  prior  cause  in  equity,  and  another 
pending  petition  to  set  aside  the  decree  in  such  prior  cause,  does 
not  estop  him  from  filing  his  own  bill  to  recover  proceeds  of  the 
decree  from  one  of  the  prevailing  parties,  and  in  the  meantime,  to 
enjoin  the  execution  of  the  decree  so  as  to  hold  up  such  proceeds 

12.  Bergmann  v.  Salmon,  69  Hun  15.  Insurance  Co.  v.  Svendson,  77 
(N.  Y.),  293.  Fed.  220. 

13.  Jarvis  v.  Grafton,  44  W.  Va.  16.  Brouwer  v.  Jones,  23  Barb. 
453,  30  S.  E.  178.  (N.  Y.)    153. 

13a.  Lowe  v.  Prospect  Hill  Cem.  17.  Alspaugh    v.    Adams,    80    Ga. 

Assn.,  58  Neb.  94.  78  N.  W.  488.  46  345,  5  S.  E.  496. 

L.  B.  A.  237.  !8.    McCrea   v.    Chaboon,    54   Hun 

14.  Fortain    v.    Smith,     114    Cal.  (N.  Y.),  577,  8  N.  Y.  Supp.  88. 
494,  46  Pac.  381.     See  Davis  v.  Con-  19.     Consolidated     Water    Co.    v. 
nolly,  20   Ky.  Law   Rep.   411,   46   S.  San  Diego,  93  Fed.  849,  35  C.  C.  A. 
W.  679.  631. 

532 


Pasties.  §  348 

to  abide  the  result  of  the  latter  bill.20  But  persons  having  no  inter- 
est in  the  controversy,  although  they  are  general  partners  of  the 
plaintiff,  cannot  properly  be  made  parties  plaintiff.21  And  persons 
who  have  acquired  from  the  defendants  a  knowledge  of  a  secret 
invention  for  which  the  plaintiff  claims  protection,  are  not  neces- 
sary parties.22 

§  348.  Same  subject;  parties  defendant. — In  an  action  to 
enjoin  the  collection  of  a  replevin  bond,  executed  in  satisfaction 
of  a  judgment  rendered  in  favor  of  the  commonwealth  for  a  fine, 
it  is  decided  in  Kentucky  that  the  county  attorney,  the  common- 
wealth's attorney,  the  circuit  court  clerk  and  sheriff  are  proper 
parties  defendant,  because  the  attorneys  have  an  interest  in  the 
fine,  and  to  prevent  the  enforcement  of  the  fine,  the  clerk  who  issues 
the  execution  and  the  sheriff  into  whose  hands  it  goes,  are  necessary 
parties.23  In  an  action  to  restrain  defendant  from  working  for  a 
certain  firm,  or  for  any  other  person  or  corporation,  in  violation 
of  a  contract  to  render  services  to  plaintiff,  it  appeared  that  he  had 
entered  into  a  subsequent  contract  with  the  firm  named,  and  it  has 
been  held  that  the  persons  composing  that  firm  had  an  interest  in 
the  controversy  and  in  the  subject  thereof,  within  the  meaning 
of  a  Code  provision  that  "  where  a  person,  not  a  party  to  the  action, 
has  an  interest  in  the  subject  thereof,  and  makes  application  to 
the  court  to  be  made  a  party,  it  must  direct  him  to  be  brought  in 
by  proper  amendment,"  and  were  entitled  to  be  made  parties  de- 

20.  Alspaugh    v.    Adams,    80    Ga.       103. 

345,  5  S.  E.  496.  A   city  which  has  agreed,  in  con- 

21.  Hammer   v.    Barnes,  26   How.        sideration  of  a  right  of  way  granted 
Prac.   (N.  Y.)    174.  for    its     water    pipes,     to    allow    a 

22.  Hammer  v.  Barnes,  26  How.  landowner  the  use  of  two  hydrants. 
Prac.    (N.  Y.)    174.  is  a  proper  party  defendant  to  a  bill 

2,3.    Bramlett    v.    McVey,    91    Ky.  to  enjoin  the  purchaser  of  the  water- 

151    15  S.  W.  49.  works    from    interfering    with    such 

Where    the    issuing    of    municipal  use.     Brown  v.  City  of  Frankfort,  10 
bonds    is    enjoined,    the    persons    to  Ky.  Law.  462,  9  S.  W.  384,  702. 
whom  the  bonds  are  to  be  issued  are  The  wife  of  a  defendant  is  not  a 
parties    in    interest,    and    must    be  proper  party  defendant,  where  no  re- 
joined.    Hutchinson  v.  Burr,  12  Cal.  lief  or  remedy  is  asked  against  her  or 

533 


§348 


Parties. 


fendant  to  the  action.24  And  in  such  cases,  where  an  employee  who 
is  charged  with  violating  a  restrictive  covenant,  is  enjoined,  it  has 
been  the  more  common  practice,  both  in  this  country  and  in 
England,  to  make  those  who  may  be  injuriously  affected  by  the 
injunction,  parties  defendant,  so  that  they  may  have  an  oppor- 
tunity to  be  heard  and  to  have  their  rights  adjudicated  in  the  same 
suit.25  Again,  an  injunction  may  be  granted  against  a  defendant, 
as  to  whom  there  is  ground  for  separate  and  independent  relief, 
though  not  warranted,  for  want  of  equity,  as  to  his  co-defendants.26 
And  though  one  of  several  defendants  may  be  designated  in  an 
action  by  a  fictitious  name,  yet  his  real  name  must  be  discovered 
and  substituted  in  the  place  of  the  fictitious,  in  order  that  an  in- 
junction in  the  suit  may  be  operative  against  him.27  A  person 
becomes  a  defendant  in  an  action  for  an  injunction,  by  filing  a 


her  property.     McMullen  v.   Ritchie. 
57  Fed.  104. 

24.  Strobridge  Lithographing  Co. 
v.  Crane,  58  Hun,  611,  12  N.  Y.  Supp. 
834,  construing  section  452,  Code  of 
Civ.  Proc.  See,  also,  Pond  v.  Har- 
wood,  139  N.  Y.  Ill,  34  N.  E.  768, 
34  N.  E.  768.  Gen.  St.  Conn.,  §  887, 
provides  that  where  a  person  not  a 
party  has  an  interest  affected  by  a 
judgment,  the  court,  on  application, 
shall  make  him  a  party.  Section  1288 
provides  that  any  one  affected  by  an 
injunction  may  be  heard  with  regard 
to  granting  or  dissolving  the  same. 
Held,  that  a  bondholder  of  a  street 
railroad  company,  which  has  insti- 
tuted proceedings  to  dissolve  an  in- 
junction forbidding  it  to  lay  tracks 
in  a  street,  is  not  entitled  to  be  made 
a  party,  it  not  appearing  that  he 
could  be  of  any  assistance  in  defense 
of  the  company's  rights,  or  that  the 
company  is  not  in  good  faith  defend- 
ing its  franchise.  In  re  Ferris,  56 
Conn.  396,  15  Atl.  751. 

25.  DePol  v.  Sohlke.  7  Robt.  (N. 
Y.)     280;     Fredericks    v.    Mayer,     1 


Bosw.  (N.  Y.)  277;  Hamblin  v.  Din- 
neford,  2  Edw.  Ch.  529;  Burton  v. 
Marshall,  4  Gill,  487;  Lumley  v. 
Wagner,  1  DeG.,  M.  &  G.  604 ;  Clarke 
v.  Price,  2  Wils.  Ch.  157.  The  prac- 
tice is  not,  however,  universal.  Mc- 
Caull  v.  Braham,  16  Fed.  37;  Daly  v. 
Smith,  49  How.  Pr.  150. 

26.  Alspaugh  v.  Adams,  80  Ga. 
345,  5  S.  E.  496. 

27.  Where  the  complaint  alleged 
that  plaintiff  was  ignorant  of  the 
true  names  of  two  of  the  defendants, 
designated  as  John  Doe  and  Richard 
Roe,  and  asked  that  their  real  names 
might  be  substituted  when  discov- 
ered, and  the  record  merely  showed 
that  "  defendants  "  answered,  but  did 
not  show  that  the  true  names  of 
these  two  defendants  were  discovered, 
and  there  was  no  amendment  of  the 
pleadings  by  substitution  of  other 
names  for  the  fictitious  ones,  it  was 
held  that  an  injunction  granted  in 
the  action  was  operative  only  against 
the  defendants  designated  by  their 
real  names.  Moulton  v.  Parks,  64 
Cal.  166,  30  Pac.  613. 


534 


Parties.  §  348a 

special  demurrer  therein,  on  the  ground  that  he  has  not  been  made 
a  party,  or  by  filing  his  answer  to  the  bill.28 

§  348a.  Same  subject  continued. — In  a  case  where  one  seeks  to 
overthrow  a  common  right  and  establish  his  right  against  all  claim- 
ants, all  parties  asserting  the  common  right  may  be  united  as 
defendants.29  So  in  an  action  to  restrain  defendants  from  floating 
logs  in  the  waters  of  a  stream  running  across  plaintiff's  land,  it 
is  decided  that  all  parties  who  assert  a  common  right  to  do  so  may 
properly  be  joined  as  defendants.30  Again,  where  the  object  of  a 
suit  is  single  and  it  is  shown  that  some  one  or  more  of  the  defend- 
ants have  interests  in  distinct  questions  growing  out  of  the  suit, 
such  defendants  are  necessary  parties  in  order  to  conclude  the 
entire  matter.31  And  it  is  proper  and  necessary  that  the  lessor 
as  well  as  the  lessee  should  be  made  parties  to  a  suit  to  enjoin  a 
nuisance.32  The  election  officers  are  also  necessary  parties  to  a 
suit  to  restrain  a  city  from  paying  the  expenses  of  conducting  a 
municipal  election.33  And  where  an  injunction  is  sought  to  pre- 
vent the  location  of  a  public  road  through  private  property  without 
prior  compliance  with  the  requirements  of  law  it  is  proper  to  join 
as  defendants  the  County  Court  or  other  tribunal,  charged  with  the 
establishment  and  maintenance  of  public  roads,  the  surveyor  of  the 
roads  of  the  proper  road  precinct,  and  the  road  contractor.34  Again, 
in  a  recent  case  in  Massachusetts  it  is  decided  that  the  proper 
method  of  bringing  unincorporated  labor  unions  before  the  court  is 

28.  Where,  in  a  suit  by  the  teach- Underwood  v.  Wood,  93  Ky.  177,  19 

ers  of  a  common  school,  to  enjoin  the  S.  W.  405. 

superintendent    from    paying    a    pro-  29.  Meyer   v.    Phillips,    97    N.    Y. 

portion  of  the   school    fund    to    the  485,  49  Am.  Rep.  538. 

teachers  of  a  private  school,  the  su-  30.  Meyer   v.    Phillips,    97    N.    Y. 

perintendent  files  an  affidavit  offering  485,  49  Am.  Rep.  538. 

to   pay   the   fund   as   the  court  may  31.  Brown  v.  Solary,  37  Fla.  102, 

direct,    and    the     court    orders    the  19  So.  161. 

teachers  of  the  private  school  to  as-  32.  O'Sullivan  v.   New  York  Ele. 

sert  their  claim,  the  latter,  by  filing  R.  Co.,  7  N.  Y.  Supp.  51. 

special  and  general  demurrers  to  the  33.  Bingham  v.  Camden,  29  N.  J. 

petition  for  want  of   proper   parties,  Eq.  464. 

and    by    answering,    become    parties.  34.  Wenger  v.  Fisher,  55  W.  Va. 

535 


§§  349,  350  Parties. 

to  join  as  parties  defendant  persons  who  are  alleged  to  be  and  are 
proper  representatives  of  the  class,  describing  the  class  to  which 
the  members  belong.35  But  in  an  action  against  a  public  official 
to  restrain  him  from  revoking  a  license  one  who  has  no  relation  to 
or  interest  in  the  litigation  except  as  a  private  citizen  is  not  a 
necessary  party  and  is  not  entitled  to  become  a  party  defendant.36 

§  349.  Standing  as  party  through  injunction — A  patentee  has 
no  standing  in  court  to  maintain  a  bill  in  equity  for  a  naked 
account  of  profits  and  damages  against  an  infringer  of  a  patent, 
unless  such  relief  is  incidental  to  some  other  equity;  but  if  he 
has  secured  his  standing  as  a  plaintiff  in  equity  by  showing  that 
he  is  entitled  to  injunctive  relief,  the  court  can  proceed  to  afford 
the  incidental  relief  and  assess  the  damages  which  the  complain- 
ant has  suffered  in  excess  of  the  profits  which  the  defendant  has 
made  by  his  infringement.  And  it  is  not  material  whether  these 
damages  are  unliquidated,  and  to  be  assessed  by  the  court,  or 
whether  they  are  called  a  penalty,  provided  the  Legislature  has 
expressly  empowered  the  court  of  equity,  in  a  bill  brought  within 
its  jurisdiction  for  preventive  remedies,  to  afford  such  additional 
and  incidental  relief.37 

§  350.  United  States  as  party.— The  United  States  may  apply 
to  a  court  of  equity  for  an  injunction  to  protect  its  property  from 
irreparable  injury,  and  may  perhaps  ask  for  injunctive  relief 
"  against  injuries  which  cannot  be  measured  in  money,"  in  matters 
relating  to  the  general  welfare,  and  in  which  the  supervisory  power 

13,  46  S.  E.  695.     Compare  Allen  v.  454,  15  L.  Ed.  155;  Stevens  v.  Cady, 

Smith  (Tenn.),  47  S.  W.  206.  2  Curt.  200.     On  the  apportionment  f 

35.  Reynolds     v.      Davis      (Mass.  of  defendant's  profits  and  plaintiff's! 
1908).   84   N.  E.  457.  damages    between   the   patented    and) 

36.  Hapgoods    v.    Bogart     (N.    Y.  unpatented  features,  see  Garretson  v.  ? 
App.  Div.  1908),  109  N.  Y.  Supp.  537.  Clark,  111  U.  S.  120,  4  S.  Ct.  291,  28 

37.  Untermeyer  v.  Freund,  58  L.  Ed.  371;  Dobson  v.  Carpet  Corn- 
Fed.  205,  7  C.  C.  A.  183.  This  sub-  pany,  114  U.  S.  439,  5  S.  Ct.  945,  29 
ject  was  generally  considered  in  L.  Ed.  177;  Gould's  Mfg.  Co.  v.  Cow- 
Stevens  v.  Gladding,  17  How.  (U.  S.)  ing,  105  U.  S.  253,  26  L.  Ed.  987. 

530 


Parties. 


§350 


of  the  government  may  be  properly  exercised.38  The  United  States 
may  bring  suit  to  prevent  an  interference  with  interstate  and 
foreign  commerce  under  the  Act  of  Congress  of  1890,  to  protect 


38.  United  States  v.  World's,  etc., 
Exposition,  56  Fed.  630.  639,  per 
Woods,  J.:  "The  next  question  is 
of  the  right  of  the  government  to 
seek  relief  in  a  court  of  equity.  It 
results  from  what  I  have  already 
said,  if  my  views  are  right,  that  there 
is  no  want  of  equity  in  the  govern- 
ment's case.  The  government  has  suf- 
ficient interests  at  stake,  because  it 
has  possession  of  the  grounds,  has 
property  there,  and  has  pecuniary  in- 
terests in  imported  goods  subject  to 
duty,  and  also  indirectly  in  the  gate 
receipts  and  income  from  all  sources; 
and,  besides,  is  under  the  highest  ob- 
ligations of  honor  and  law  to  protect 
the  property  and  interests  of  foreign 
nations  and  of  the  several  States  of 
the  Union,  and  of  all  exhibitors 
brought  there  upon  its  invitation. 
Every  open  day  brings  its  risks  of 
loss  by  fire,  theft,  fraud  and  the  cer- 
tainty of  additional  expense.  Having 
such  possession  and  interests  and  obli- 
gations, and  having  no  other  means  of 
enforcing  obedience  to  its  regulations, 
the  government  is  entitled  to  the  as- 
sistance of  the  court.  Pecuniary  in- 
terests, sufficient  to  warrant  an  ap- 
peal to  equity,  are  plain  enough,  and 
it  is  not  material  to  the  question  of 
jurisdiction — it  is  not  for  the  court  to 
inquire — whether  those  interests  are 
likely  to  be  affected  advantageously  or 
disadvantageously  by  the  unlawful 
conduct  which  it  is  sought  to  enjoin. 
There  are  other  rights  and  interests 
quite  as  sacred  as  dollars,  and  equity 
protects  against  injuries  which  cannot 
be  measured  in  money.  The  case  of 
United  States  v.  W.  U.  Tel.  Co.,  50 
Fed.  28,  affords  an  instructive  illus- 


tration. The  suit  was  to  cancel  an 
agreement  between  that  company  and 
the  Union  Pacific  Railway  Company, 
whereby  the  telegraphic  franchise  of 
the  railway  company  was  improperly 
transferred  to  the  telegraph  company, 
and  to  compel  the  railway  company, 
in  obedience  to  its  charter,  to  exercise 
that  franchise  directly  through  its 
own  officers  and  employes.  It  was  in- 
sisted in  argument,  and  was  conceded 
by  the  court,  that  the  contract  was 
pecuniarily  beneficial  to  the  railway, 
and  also  to  the  government,  as  second 
mortgagee  of  the  company's  prop- 
erty; but  the  court,  by  Justice 
Brewer,  said :  '  The  government  is, 
it  is  true,  pecuniarily  interested  as 
second  mortgagee;  but  a  higher  in- 
terest is  that  the  administration  of 
its  franchises  should  redound  to  the 
general  welfare,  and  not  merely  to 
the  pecuniary  interest,  of  its  grantee, 
or  even  of  itself.  The  dollar  is  not 
always  the  test  of  the  real  interest. 
It  may  properly  be  sacrificed  if  any- 
thing of  higher  value  be  thereby  at- 
tained But  whether  the  dollar  be 
gained  or  lost  is  not,  in  a  matter  of 
this  kind,  a  question  for  the  courts. 
It  is  for  the  legislative  branch,  as 
representative  of  the  popular  will,  to 
settle  all  such  questions.  Given  power 
to  act  in  the  Legislature,  and  its 
mandatory  action,  the  simple  province 
of  the  courts  is  to  enforce  such  man- 
date; and  they  have  no  revisory  de- 
termination as  to  the  wisdom  or  folly 
of  the  commanded  act. 
Neither  can  there  be  any  question  in 
this  case  of  the  right  of  the  govern- 
ment to  maintain  this  bill.  It  was 
the  creator  of  the  railway  corpora- 


537 


350 


Parties. 


trade  and  commerce  against  unlawful  restraint  and  monopolies.39 
And  trespasses  upon  the  public  lands  of  the  United  States  may 
be  enjoined  at  the  suit  of  the  government,40  and  so  may  injury  to 
the  navigable  waters  of  the  United  States  from  works  carried  on 
by  State  authority,  where  the  charge  of  such  injury  is  not  satis- 


tion  defendant,  and  a  large  contribu- 
tor to  its  finances.  It  made  abso- 
lutely a  large  grant  of  lands.  It 
loaned  its  own  bonds,  and  holds  to- 
day a  second  mortgage.  By  reason 
of  its  governmental  duty  to  regulate 
the  affairs  of  this  corporation,  and 
also  its  pecuniary  interest  in  their 
successful  management,  it  may  prop- 
erly legislate  in  respect  thereto,  and 
invoke  the  aid  of  the  court  to  com- 
pel compliance  with  its  determina- 
tion. And  when  it  is  the  complain- 
ant the  inquiry  is  different  and 
broader  than  when  the  corporations 
themselves  are  the  contesting  parties, 
or  when  only  individuals  are  chal- 
lenging their  action.  The  supervisory 
power  of  the  government  is  plenary, 
and  its  commands  to  its  corporate 
creations  must  be  enforced,  unless 
they  trespass  upon  some  vested 
rights  of  property.  ...  It  is 
urged  that  if  a  duty  is  cast  upon 
these  corporations,  it  must  be  en- 
forced by  mandamus.  ...  A 
court  of  equity,  with  its  flexible  pro- 
cedure, can  alone  meet  all  the  exi- 
gencies. The  jurisdiction  of  such  a 
court  seems  to  me  necessary  and  un- 
questionable.' The  right  of  the  gov- 
ernment to  maintain  a  bill  in  equity 
on  the  ground  of  obligation  or  duty 
either  to  an  individual  or  to  the  pub- 
lic, when  it  had  no  pecuniary  inter- 
est, has  been  affirmed  in  several  in- 
stances by  the  Supreme  Court.  United 
States  v.  San  Jacinto  Tin  Co.,  125  U. 
S.  273,  31  L.  Ed.  747,  8  Sup.  Ct.  Rep. 
850;  United  States  v.  Beebe,  127  U. 


S.  338,  32  L.  Ed.  121,  8  Sup.  Ct.  Rep. 
1083;  United  States  v.  Marshall  Sil- 
ver Min.  Co.,  129  U.  S.  579,  32  L. 
Ed.  734,  9  Sup.  Ct.  Rep.  343;  Curtner 
v.  United  States,  149  U.  S.  662,  37  L. 
Ed.  890,  13  Sup.  Ct.  Rep.  985,  1041." 

39.  In  United  States  v.  Working- 
men's,  etc.,  Council,  54  Fed.  994,  the 
district  attorney  for  the  eastern  dis- 
trict of  Louisiana,  acting  under  the 
direction  of  the  attorney  general  and 
in  the  name  of  the  United  States,  ex- 
hibited in  the  Circuit  Court  for  said 
district  a  bill  for  injunction  u.'ider 
the  Act  of  Congress,  26  U.  S.  Stat. 
209;  and  the  order  of  the  Circuit 
Court  granting  the  injunction  was  af- 
firmed by  the  Circuit  Court  of  Ap- 
peals. Workingmen's,  etc.,  Council 
v.  United  States,  57  Fed.  85.  Where 
the  creditor  of  a  steamship  company 
was  proceeding  to  sell  its  steamers 
under  an  execution  issued  by  a  State 
court,  the  United  States  applied  for 
an  injunction  to  restrain  the  sale  on 
the  ground  that  it  had  liens  on  the 
steamers,  it  was  held  that  the  rights 
of  the  creditors  were  superior  to  those 
of  the  government  so  far  at  least  as 
to  allow  them  to  sell  the  vessels  sub- 
ject to  the  lien  of  the  government, 
and  the  injunction  was  denied 
United  States  v.  Collins,  4  Blatchf. 
142. 

40.  United  States  v.  Brighton 
Ranche  Co.,  25  Fed.  465,  26  Fed.  218. 
But  in  an  action  brought  in  the  name 
of  the  United  States  to  repeal  letters 
patent,  a  temporary  injunction  will 
not  be  granted  to  restrain  defendant 


538 


Parties. 


§351 


factorily  refuted  by  the  defendant.41  Though  a  court  of  equity 
cannot  directly  restrain  the  government  of  the  United  States,  a 
department  of  the  government  and  its  agents  may  be  restrained 
from  executing  an  act  of  Congress  in  an  unconstitutional  man- 
ner, as,  for  instance,  from  taking  private  property  without  com- 
pensation.42 The  United  States  cannot  be  perpetually  enjoined 
from  proceeding  under  a  judgment  in  its  favor,  but  a  Federal 
Circuit  Court  has  jurisdiction  to  direct  credits  to  be  given  on  the 
judgment  and  to  stay  execution  until  an  investigation  relating 
thereto  shall  be  made.43 

§351.  State  as  party;  relators. — While,  as  before  seen,  an 
injunction  will  not  be  granted  in  matters  of  purely  public  concern 
at  the  instance  of  a  private  person  only,44  but  must  be  applied  for 
by  the  Attorney-General,  yet  if  that  officer,  upon  being  requested 
to  move  in  a  matter  strictly  publici  juris,  refuses  or  unreasonably 
delays  to  do  so,  an  injunction  may,  upon  leave  of  court,  be  applied 
for  upon  the  relation  of  a  private  person  in  the  name  of  the  State. 


from  prosecuting  actions  for  in- 
fringement, as  the  government  ha3 
no  interest  in  such  actions.  United 
States  v.  Colgate,  22  Blatchf.  412. 
Digging  lead  ore  from  the  public 
lands  of  the  United  States  may  be  en- 
joined at  the  instance  of  the  United 
States.  United  States  v.  Gear,  3  How. 
(U.  S.)    121,   11  L.  Ed.  523. 

41.  United  States  v.  Duluth,  1 
Dillon,  469.  In  United  States  v.  Mis- 
sissippi, etc.,  Boom  Co.,  1  McCrary, 
601,  an  injunction  was  granted  to  re- 
strain a  threatened  injury  to  im- 
provements made  in  a  river,  over 
which  Congress  had  assumed  jurisdic- 
tion in  the  interest  of  commerce. 

42.  Avery  v.  Fox,  1  Abb.  U.  S.  246. 

43.  United  States  v.  McLemore,  4 
How.   (U.  S.)  286,  11  L.  Ed.  977. 

44.  Section  13,  ante.  A  suit  to  en- 
join the  sale  of  and  injury  to  a  pub- 
lic park  by  a  city  cannot  be  main- 


tained by  individuals,  who  suffer  only 
in  common  with  the  rest  of  the  public, 
but  must  be  brought  by  a  duly  au- 
thorized public  officer.  Mowry  v.  City 
of  Providence,  16  R.  I.  422,  16  Atl. 
511. 

45.  State  ex  rel.  Lamb  v.  Cun- 
ningham, 83  Wis.  90,  53  N.  W.  35, 
which  was  a  suit  to  enjoin  the  secre- 
tary of  State  from  giving  notices  of 
the  election  of  members  of  the  Senate 
and  Assembly  under  the  Apportion- 
ment Act  of  L.  1891,  ch.  482,  on  the 
ground  that  the  act  made  an  appor- 
tionment in  violation  of  the  Consti- 
tution. The  attorney  general  hav- 
ing refused  to  act  in  the  injunction 
suit,  the  injunction  was  granted  in 
the  name  of  the  State  on  the  rela- 
tion of  a  private  citizen.  And  see 
State  ex  rel.  Atty.  Gen.  v.  Cunning- 
ham, 81  Wis.  440,  51  N.  W.  724, 
where  it  is  held  that  in  matters  of 


539 


§  351  Partiks. 

And  in  an  action  brought  by  the  Attorney-General  in  the  name  of 
the  State  on  the  relation  of  a  citizen  and  a  taxpayer  to  restrain 
the  Secretary  of  State  from  drawing  certain  warrants  upon  the 
State  Treasurer  in  favor  of  the  State  Superintendent,  it  is  Dot 
necessary  that  the  relator  should  have  any  special  or  peculiar 
interest  in  the  subject  matter.46  And  in  matters  of  purely  public 
right  an  action  for  an  injunction  may  be  maintained  in  the  name 
of  the  State  upon  the  relation  of  the  Attorney-General  without  the 
intervention  of  a  private  relator.47  So  where  the  operations  of  a 
corporation  are  being  conducted  under  a  plan  which  is  in  contra- 
vention of  public  policy  a  suit  for  an  injunction  restraining  its 
officers  from  so  continuing  its  operations  may  be  brought  by  the 
State  through  its  Attorney-General.48  And  a  State  may  prosecute 
a  proceeding  for  an  injunction  whether  it  has  any  pecuniary  in- 
terest in  the  matter  or  not  where  the  act  sought  to  be  enjoined 
is  one  resulting  in  injury  to  the  general  welfare.49  So  acts  of 
public  officials  which  are  illegal  and  unauthorized  are  the  proper 
subjects  of  preventive  jurisdiction  of  equity  and  such  acts  may 
be  restrained  in  a  suit  brought  in  the  name  of  the  State  by  the 
county  attorney  of  the  county  in  which  the  acts  are  to  be  done.50 
But  the  people  of  a  State  not  being  interested  in  the  question 
whether  the  taxable  inhabitants  of  a  certain  town  should  issue 
bonds  of  that  town  to  aid  in  the  construction  of  a  railroad  it  is 
decided  that  a  proceeding  to  restrain  the  issuance  of  such  bonds 

public  right  in  which  no  citizen  has  Wis.  115;  State  ex  rel.  Atty.  Gen.  v. 

any  right  or  interest  other  than  that  Conklin,   34   Wis.   21;    State  ex   rel. 

which  is  common  to  all,  a  petition  by  Atty.  Gen.  v.  O'Neill,  24  Wis.   152; 

a   private    person   for   leave  to  com-  State  ex  rel.  Atty.  Gen.  v.  Merrill,  2 

mence  an  action  in  the  name  of  the  Pin.   (Wis.)  279. 

State  will  not  be  considered  until  the  48.  State  v.  New  Orleans  Debent- 

attorney  general  has  been  requested  ure  R.  Co.,  51  La.  Ann.  1827,  26  So. 

to  move  and  has  refused.  586. 

46.  State  ex  rel.  Raymer  v.  Cun-  49.  State  v.  Zachritz,  166  Mo.  307, 
ningham,  82  Wis.  39,  51  N.  W.  1133.  65  S.  W.  999,  89  Am.  St.  Rep.  711. 

47.  State  ex  rel.  Atty.  Gen.  v.  Cun-  50.  State  v.  Commissioners  of 
ningham,  81  Wis.  440,  51  N.  W.  724;  Marion  County,  21  Kan.  419.  See, 
and  see  the  analagous  cases  of  State  also,  State  v.  Kansas  City,  60  Kan. 
ex   rel.   Atty.   Gen.   v.   Messmore,   14  518,  57  Pac.  118. 

540 


Pabties. 


§352 


cannot  be  maintained  in  the  name  of  the  people  by  their  attorney.51 
So  as  the  State  has  no  legal  or  equitable  interest  in  the  issue  of 
county  bonds  to  pay  for  a  county  subscription  to  stock  of  a  railroad 
company,  it  is  not  a  proper  party  plaintiff  to  an  injunction  bill 
to  restrain  the  County  Court  from  issuing  the  bonds.52 

§  352.  Same  subject. — A  private  citizen  cannot  maintain  an 
injunction  to  protect  a  public  right,  unless  he  has  been  made  the 
representative  of  that  right.53  So  an  action  to  enjoin  proceedings 
for  the  organization  of  a  new  town  cannot  be  maintained  by  per- 
sons having  no  other  interest  than  one  common  to  all  the  free- 
holders of  the  proposed  town.  The  proceeding,  if  void,  can  be 
enjoined  only  at  the  suit  of  the  State  or  some  duly  authorized 
public  officer,  and  a  private  person  cannot  restrain  it,  unless  it 
involves  some  peculiar  damage  to  his  individual  interests.54  So 
one  who  is  entitled  to  build  and  has  built  wharves  and  warehouses 


51.  People  v.  Clark,  53  Barb.  (N. 
Y.)  171.  But  compare  State  v.  Kan- 
sas City,  60  Kan.  518,  57  Pac.  118. 

52.  State  v.  Platte  County  Court 
et  al.,  32  Mo.  496. 

53.  In  Adler  v.  Metropolitan  El. 
R.  Co.,  138  N.  Y.  173,  33  N.  E.  935, 
it  was  held  that,  assuming  a  certain 
iron  pillar  and  a  portion  of  a  certain 
station  of  the  elevated  road  were  lo- 
cated on  the  street  without  author- 
ity, and  were  an  infringement  upon 
the  public  right  in  the  street,  yet 
that  plaintiff  was  not  the  represen- 
tative of  that  right,  and  could  not,  in 
his  capacity  as  a  citizen  merely, 
maintain  an  injunction  to  prevent 
such  occupation  of  the  street  by  the 
defendant  company;  and  that  he 
could  not  maintain  it  as  an  owner  of 
adjacent  property,  as  it  appeared  he 
had  no  interest  in  the  soil  occupied 
by  the  station,  and  it  was  not  shown 
that  he  had  sustained  any  distinct  or 
separate  injury  by  reason  of  the  en- 


croachment. In  support  of  the  de- 
cision Andrews,  C.  J.,  cited  Lansing 
v.  Smith,  8  Cow.  146;  Doolittle  v. 
Supervisors,  18  N.  Y.  155;  Fort  Plain 
Bridge  Co.  v.  Smith,  30  N.  Y.  44. 

Violation  of  public  duty  by 
public  officers  must  be  enjoined  by 
the  proper  public  officer,  on  behalf 
of  the  State,  and  not  by  a  private 
person.  Seager  v.  Kankakee  Co.,  102 
111.  669. 

54.  Doolittle  v.  Broome  County 
Supervisors,  18  N.  Y.  155.  In  his 
opinion  in  this  case  Denio,  J.,  exam- 
ined the  following  cases  in  the  Su- 
preme Court:  Adriance  v.  Mayor,  1 
Barb.  19;  Brower  v.  Mayor,  3  Barb. 
254;  Christopher  v.  Mayor,  13  Barb. 
567;  Milhau  v.  Sharp,  15  Barb.  193; 
Stuyvesant  v.  Pearsall,  15  Barb.  244; 
DeBaun  v.  Mayor,  16  Barb.  392,  and 
criticised  them  as  overlooking  the 
distinction  between  individual  and 
public  remedies.  A  company  cannot 
enjoin  another  company  and  a  board 


541 


§353 


Parties. 


on  the  tide  lands  of  the  State,  cannot  maintain  an  injunction 
against  an  adjoining  trespasser  on  the  tide  lands  if,  notwithstand- 
ing  the  trespass,  he  still  has  access  to  his  wharves.55 

§  353.  Same  subject;  nuisances. — When  an  act  complained  of 
or  apprehended  is,  besides  being  a  public  nuisance,  specially 
injurious  to  a  private  person,  he  may  maintain  an  action  for  an 
injunction  in  his  own  name ;  but,  in  this  class  of  cases,  there  is 
sometimes  difficulty  in  determining  whether  the  act  is  or  not 
specially  injurious  to  the  plaintiff.56  The  rule,  inversely  stated,  is 
that  in  the  case  of  a  public  nuisance  an  individual  cannot  have  an 


appointed  to  let  public  contracts  for 
the  State  from  proceeding  under  a 
contract  for  binding  State  documents, 
awarded  by  the  board  to  the  latter 
company,  where  the  suit  is  not 
brought  in  behalf  of  the  State;  such 
contracts,  and  the  laws  prescribing 
how  they  shall  be  let,  being  intended 
to  protect  public  interests  and  not 
those  of  individuals,  as  such.  Arkan- 
sas Democrat  Co.  v.  Press  Printing 
Co.,  57  Ark.  322,  21  S.  W.  586. 

55.  Morse  v.  O'Connell,  7  Wash. 
117,  34  Pac.  426.  As  to  the  power  of 
the  State  to  control  her  tide  lands, 
subject  only  to  the  paramount  au- 
thority of  Congress  to  regulate  navi- 
gation and  commerce,  see  Hardin  v. 
Jordan,  140  U.  S.  371,  11  S.  Ct.  808, 
838;  Manchester  v.  Massachusetts, 
139  U.  S.  240,  11  S.  Ct.  559;  Bowlby 
v.  Shively,  22  Oreg.  410,  30  Pac.  154; 
Eisenbach  v.  Hatfield,  2  Wash.  St. 
236,  26  Pac.  539;  Stevens  v.  Rail- 
road Co.,  34  N.  J.  L.  533. 

56.  Where  a  railroad  is  con- 
structed in  a  highway  without  au- 
thority, it  is  a  public  nuisance,  be- 
cause an  invasion  of  the  public  ease- 
ment; but  in  such  a  case  an  injunc- 
tion will  not  be  granted  in  favor  of 


the  owner  of  the  fee  in  the  highway, 
unless  he  suffers  some  special  injury 
distinct  from  that  suffered  by  the 
public.  Van  Home  v.  Newark  Pass. 
R.  Co.,  48  N.  J.  Eq.  332,  21  Atl.  1034; 
Perkins  v.  Moorestown  &  C.  Turnpike 
Co.,  48  N.  J.  Eq.  499,  22  Atl.  180. 
In  Spencer  v.  London,  etc.,  R.  Co.,  8 
Simons,  193,  the  bill  for  injunction 
was  sustained  where  the  act  com- 
plained of  was  the  obstructing  of  a 
street  through  which  plaintiff'  had  to 
pass  from  his  stable  to  his  place  of 
business;  in  Corning  v.  Lowerre,  6 
Johns.  Ch.  439,  the  injunction  was 
granted  to  prevent  the  obstructing  of 
a  paved  street  on  which  the  plaintiff 
owned  lots;  in  Sampson  v.  Smith,  8 
Simons,  272,  the  act  enjoined  by  the 
plaintiff  was  the  filling  the  street 
near  the  plaintiff's  draper  shop  with 
smoke  and  soot  from  a  steam  engine 
which  the  defendant  used  on  the  op- 
posite side  of  the  street.  And  see 
Crowder  v.  Tinkler,  19  Ves.  617.  An 
abutting  owner  may  enjoin  a  nui- 
sance which,  from  the  location  of  his 
premises,  will  render  it  specially  in- 
jurious to  him.  Davis  v.  Mayor,  14 
N.  Y.  506;  Doolittle  v.  Supervisors, 
18  N.  Y.  155r  163,  per  Denio,  J. 


542 


Parties. 


§354 


injunction  unless  he  avers  and  proves  some  special  injury,57  and 
he  cannot  bring  a  suit  in  the  name  of  the  State  to  enjoin  a  public 
nuisance  unless  some  injury  of  such  a  character  is  sustained  by 
him.58  The  question  of  special  injury  to  the  individual  in  such 
cases  is  material  only  to  his  standing  to  bring  the  suit ;  it  is  the 
gravity  of  the  interference  with  the  public  rights  and  interests 
which  determines  the  court  to  grant  an  injunction.59 


§  354.  Cities  and  citizens. — A  private  person  cannot  maintain 
an  injunction  on  behalf  of  the  city  in  which  he  resides,  to  prevent 
the  violation  of  an  ordinance  enacted  pursuant  to  the  city  charter, 
unless  such  authority  is  conferred  upon  him  by  statute.60     And 


57.  In  Georgetown  v.  Alexandria 
Canal  Co.,  12  Pet.  (U.  S.)  91,  9  L. 
Ed.  1012,  there  was  an  obstruction  of 
the  Potomac  river,  and  it  was  held 
that,  as  plaintiffs  had  not  averred 
and  proved  they  were  owners  of 
property  liable  to  be  injured  by  the 
nuisance,  they  could  not  maintain  the 
bill  for  injunction. 

In  Bigelow  v.  Hartford  Bridge  Co., 
14  Conn.  565,  the  plaintiff  filed  a  bill 
to  restrain  the  building  of  a  causeway 
which  would  cause  the  Connecticut 
river  to  overflow  his  land,  and  the 
bill  was  dismissed  because  the  injury 
was  not  peculiar  to  plaintiff,  but 
common  to  the  public  generally. 

In  O'Brien  v.  Norwich,  etc.,  R.  Co., 
17  Conn.  372,  the  act  threatened  was 
the  building  of  a  bridge  over  an  arm 
of  the  sea,  which  would  prevent  the 
inhabitants  of  Preston,  of  whom  was 
plaintiff,  from  having  access  to  the 
mouth  of  the  river  Thames.  The  bill 
was  dismissed  on  the  ground  that  no 
damage  peculiar  to  plaintiff  was 
shown.  See,  also,  Seeley  v.  Bishop, 
19  Conn.  128;  Smith  v.  Boston,  7 
Cush.  (Mass.)  254;  Anon.,  3  Atk. 
750. 


58.  State  v.  Milwaukee,  102  Wis. 
509,  78  N.  W.  750. 

59.  Flynn  v.  Taylor,  127  N.  Y.  596, 
28  N.  E.  418;  Callanan  v.  Gilman, 
107  N.  Y.  360,  14  N.  E.  264. 

60.  Binghamton  City  Charter,  tit. 
9,  §  23,  provides  that  "  the  common 
council  shall  have  power  ...  to 
prescribe  limits  in  the  city,  within 
which  wooden  buildings  shall  not  be 
constructed,  removed,  added  to,  or  en- 
larged, without  the  permission  of  the 
said  common  council,"  and  that  the 
council  may  prescribe  fines  and  im- 
prisonment for  violations  of  ordi- 
nances and  resolutions  made  pursu- 
ant to  such  section.  Title  3,  §  8,  pro- 
vides that,  "  violations  of  all  ordi- 
nances and  resolutions  may  also  be 
restrained  by  the  injunction  order  of 
any  court  having  jurisdiction,  and 
the  city  of  Binghamton  may,  in  its 
corporate  name,  bring  actions  for 
such  injunctions."  Held,  that  an  ac- 
tion to  enjoin  the  moving  of  a  build- 
ing in  the  fire  limits,  in  violation  of 
an  ordinance  enacted  pursuant  to  the 
city  charter,  could  not  be  brought  by 
a  private  person,  but  was  maintain- 
able only  by  the  city.    Ogden  v.  Wel- 


543 


§354 


Pabties. 


ordinarily,  a  city  cannot  have  an  injunction  to  restrain  the  threat- 
ened violation  of  a  city  ordinance  directed  against  risks  by  fire." 
And  it  is  only  when  the  act  of  a  municipal  corporation  which  is  a 
public  wrong  works  also  a  special  injury  to  particular  individuals 
that  a  suit  for  an  injunction  can  be  maintained  in  their  names 
alone.62  So  the  aid  of  a  court  of  equity  can  not  be  invoked  either 
by  an  individual  or  by  a  private  corporation  to  enjoin  the  con- 
struction of  a  street,  railway.63  And  private  individuals  who 
sustain  no  injury  other  than  that  sustained  in  common  with  all 
citizens  cannot,  in  the  case  of  a  contemplated  change  by  a  railroad 
company  in  the  operation  of  the  road,  maintain  a  suit  to  restrain 


den,  61  Hun  (N.  Y.),  621,  15  N.  Y. 
Supp.  790.  The  court  said :  "  An 
examination  of  the  portion  of  the 
charter  relied  upon  by  the  appellant 
shows  that  it  fails  to  expressly  con- 
fer upon  any  other  party  than  the 
city  the  right  to  maintain  an  action 
for  an  injunction.  The  appellant, 
however,  contends  that  such  right  is 
to  be  implied  from  the  language  em- 
ployed in  section  8.  We  do  not  think 
that  that  section  is  susceptible  of  the 
construction  contended  for.  We  find 
nothing  in  it  from  which  any  author- 
ity to  maintain  an  action  to  enjoin 
the  erection  of  such  a  building  by  any 
party  except  the  city  of  Binghamton 
can  be  properly  implied." 

Against  erection  of  wooden 
buildings. — In  Stilwell  v.  Riding 
Academy,  4  N.  Y.  Supp.  414,  it  was 
held  that  a  violation  of  an  ordinance 
of  the  city  of  Buffalo,  prescribing 
that  the  creation  of  a  wooden  build- 
ing in  the  city  was  a  nuisance,  was 
not  a  ground  for  granting  an  in- 
junction at  the  suit  of  an  individual ; 
that  the  remedy  was  through  the  city 
authorities. 

In  Young  v.  Scheu,  9  N.  Y.  Supp. 
349,   56   Hun    (N.   Y.),   307,    it   was 


held  that  a  police  regulation  against 
wooden  buildings  did  not  give  a  lot 
owner  the  right  to  maintain  an  in- 
junction against  the  erection  of  a 
frame  building. 

Against  bawdy  house. — In  An- 
derson v.  Doty,  33  Hun  (N.  Y.),  160, 
it  was  held  that  plaintiff  could  not 
enjoin  a  bawdy  house  in  the  city  of 
Rochester,  which  rendered  his  own 
houses  in  the  neighborhood  less  mar- 
ketable and  less  tenantable. 

Violation  of  Sunday  law  can 
not  be  enjoined  at  suit  of  private 
citizen.  Fisher  v.  Lakeside  Park  & 
A.  Co.,  4  Ohio  N.  P.  329. 

Where  city  limits  have  been 
extended  by  an  ordinance  the 
validity  of  such  ordinance  may  be 
tested  in  a  proceeding  brought  by  a 
resident  of  the  added  territory  to 
enjoin  the  collection  of  city  taxes. 
Parker  v.  Zeisler,  73  Mo.  App.  537. 

61.  St.  Johns  v.  McFarlan,  33 
Mich.  72;  Waupun  v.  Moore,  34  Wis. 
450;  Mayor  v.  Thome,  7  Paige  (N. 
Y.),  261;  Manchester  v.  Smyth  (N. 
H.  1887),  10  Atl.  700. 

62.  Davis  v.  Mayor  of  New  York, 
2  Duer    (N.  Y.),  663. 

63.  People   v.   General    Elec.    Ry. 


544 


Parties.  §  355 

the  company  from  making  such  change.64  But  where  there  is  no 
municipal  corporation  to  assert  the  general  right  of  the  public,  an 
individual  proprietor  of  land  to  be  injured  by  the  perversion  of  a 
public  street  or  square,  may  maintain  an  injunction  in  behalf  of 
himself  and  others  similarly  interested,  to  prevent  such  perver- 
sion.65 And  it  has  been  decided  that  a  private  citizen  may  bring 
an  action  to  enjoin  the  alleged  unauthorized  collection  of  tolls  by  a 
turnpike  company.66  Again,  where  a  petition  for  an  injunction 
against  the  payment  of  salaries  to  policemen  not  legally  appointed 
was  brought  against  the  clerk,  auditor  and  treasurer  of  a  city,  but 
the  city  was  not  made  a  party,  it  was  decided  that  it  was  not 
enough  that  the  city  assumed  the  defense  of  the  case  through  its 
attorney  but  that  the  city  was  a  necessary  party  and  that  so  long 
as  it  did  not  appear  upon  the  record  no  decree  could  be  passed 
against  it.67 

§  355.  Towns  as  parties. — A  town  which  is  bound  to  maintain 
and  keep  in  repair  an  open  drain  within  its  limits,  is  the  proper 
party  plaintiff  to  bring  a  bill  to  enjoin  an  obstruction  of  the 
drain.68  And  a  town  may,  in  a  proper  case,  enjoin  an  interference 
with  a  public  way,  by  which  it  may  be  put  to  expense  in  repairing 
the  way,  or  may  be  liable  in  damages  for  injuries  caused  by  the 
obstruction.69     But  a  bill  in  equity,  brought  by  a  town,  and  its 

Co.,  172  111.  129,  50  N.  E.  158.     See  could  enjoin  the  city  of  Boston  from 

Lohenstine  v.  Union  Elev.  R.  Co.,  80  excavating  a  highway  in  the  town  for 

Fed.    9,   25   C.   C.  A.   304,   53   U.   S.  the  purpose  of  laying  water  works, 

App.  1.  to   supply  the   city   with   water,   the 

64.  Henry  v.  Ann  Arbor  R.  Co.,  city  not  having  the  authority  of 
116  Mich.  314,  75  N.  W.  886.  statute.    On  the  same  point,  see  Bur- 

65.  Cady  v.  Conger,  19  N.  Y.  256.  lington    v.    Schwarzmann,    52    Conn. 

66.  Louisville  &  T.  T.  R.  Co.  v.  181;  Springfield  v.  Connecticut  Riv. 
Boss,  19  Ky.  Law  Rep.  1954,  44  S.  R.  Co.,  4  Cush.  63,  per  Shaw,  C.  J.: 
W.  981.  See  Fitzgibbon  v.  La  Cam-  "  A  preliminary  objection  was  taken, 
pagnie  du  Chemin  de  Peage  de  that  the  inhabitants  of  the  town,  in 
Dorval,  12  Caw.  S.  409.  their  corporate  capacity,  have  no  such 

67.  Samis  v.  King,  40  Conn.  298.  interest  in  the  preservation    of    the 

68.  Town  of  Melrose  v.  Cutter,  159  highways  within  their  limits,  as  will 
Mass.  461,  34  N.  E.  695.  warrant    them    in    applying    to    this 

69.  Inhabitants  of  Quincy  v.  City  court  to  restrain  and  prevent  a  nui- 
of  Boston,  148  Mass.  389,  19  N.  E.  sance.  We  have  not  examined  the 
519,  where  it  was  held  that  the  town  subject  very  thoroughly,  but  we  are 


545 
35 


355 


Parties. 


highway  surveyors,  to  prevent  the  obstruction  of  a  town  way, 
cannot  be  maintained  if  it  alleges  no  special  damage  to  the  in- 
habitants of  the  town  distinct,  or  different  from  that  suffered  by 
the  public  generally  ;70  and  if  the  nuisance  is  public,  and  requires 
the  interposition  of  a  court  of  equity,  the  suit  must  be  instituted 
by  the  Attorney-General,  or  by  some  officer  who  represents  the 
commonwealth,  either  in  his  own  name  or  that  of  the  people.71 
In  case  of  the  threatened  removal  of  a  fence  by  the  supervisors  and 
pathmaster  of  a  town  on  the  claim  that  it  encroaches  upon  a  high- 
way, the  town  is  a  proper  party  to  an  action  to  prevent  it.72    And 


inclined  to  think  that  as  the  town  is 
responsible  for  the  amendment  of 
town  ways,  and  for  damages  to  trav- 
elers, they  have  the  right  to  invoke 
the  equity  power  vested  in  this  court 
in  cases  of  nuisance." 

70.  Needham  v.  New  York  &  New 
Eng.  R.  Co.,  152  Mass.  61,  25  N.  E. 
20.  A  village  corporation  may  file 
a  bill  to  enjoin  a  nuisance  on  a  pub- 
lic square  dedicated  to  the  use  of  its 
inhabitants,  and  a  private  person, 
having  a  right  to  enjoin  the  nuisance, 
may  be  joined  as  plaintiff  with  the 
corporation  in  one  suit.  Watertown 
Trustees  v.  Cowen,  4  Paige,  510,  514, 
per  Walworth,  Ch.:  "The  Court  of 
Chancery,  in  England,  granted  an  in- 
junction upon  the  application  of  the 
corporation  of  the  city  of  London,  to 
prevent  a  nuisance  by  which  the  lives 
of  the  citizens  would  b^  endangered. 
Mayor  of  London  v.  Bolt,  5  Ves.  129. 
And  in  the  State  of  North  Carolina 
a  decree  for  a  perpetual  injunction, 
to  restrain  the  erection  of  a  nuisance, 
which  would  endanger  the  health  of 
the  town  of  Yarborough,  was  made 
on  a  bill  filed  by  the  Attorney-Gen- 
eral and  the  inhabitants  of  the  town 
jointly.  Attorney-General  et  al  v. 
Blount,    4   Hawks,   384." 

71.  Attorney-General  v.  Metropoli- 
tan Railroad,  125  Mass.  515;  Attor- 
ney-General v.  Jamaica    Pond    Aque- 


duct, 133  Mass.  361;  People  v.  Van 
derbilt,  28  N.  Y.  396;  State  v.  Day- 
ton, etc.,  R.  Co.,  36  Ohio  St.  434 ;  At- 
torney-General v.  Lea,  3  Ired.  Eq. 
302;  Attorney-General  v.  Perkins,  2 
Dev.  38. 

As  to  the  power  of  the  Attor- 
ney-General to  prosecute  an  action 
in  the  name  of  the  people,  to  restrain 
commissioners  from  issuing  town 
bonds,  see  People  v.  Miner,  2  Lans. 
396,  where  Davis  v.  New  York,  2 
Duer,  663,  is  disapproved,  and  such 
power  to  restrain  corporate  action  is 
found  to  be  limited  to  public  nui- 
sances and  to  breach  of  trust  for 
charitable  uses;  and  in  support  of 
this  conclusion  are  cited  Attorney- 
General  v.  Forbes,  2  M.  &  Cr.  123; 
Frewin  v.  Lewis,  4  M.  &  Cr.  249;  At- 
torney-General v.  Aspinall,  2  M.  & 
Cr.  613,  reversing  1  Keen,  513;  Attor- 
ney-General v.  Poole,  2  Keen,  190,  af- 
firmed 4  M.  &  Cr.  17;  Attorney-Gen- 
eral v.  Norwich,  16  Simons,  225;  At- 
torney-General v.  Utica  Ins.  Co.,  2 
Johns.  Ch.  371;  People  v.  Lowber,  7 
Abb.  158;  People  v.  Mayor,  9  Abb. 
Pr.  253;  People  v  Mayor,  10  Abb.  Pr. 
144;  People  v.  Mayor,  32  Barb.  102. 
And  see  Doolittle  v.  Broome,  18  N. 
Y.  157. 

72.  Nicolai  v.  Town  of  Vernon,  88 
Wis.  551,  60  N.  W.  999. 


546 


Parties.  §  356 

where  in  a  proceeding  by  a  telephone  company  to  enjoin  the  threat- 
ened removal  of  poles  and  wires  it  is  alleged  that  some  of  the 
stockholders  in  the  defendant  company  are  village  trustees  and 
that  they  are  conspiring  with  the  defendant  company  to  create  a 
monopoly  in  favor  of  the  defendant  it  is  proper  to  join  the  tele- 
phone company  and  the  village  as  defendants.73  And  where  it 
was  sought  to  restrain  the  incorporation  of  a  village  by  certain 
persons  and  the  acts  sought  to  be  restrained  were  consummated 
and  the  village  became  incorporated,  and  in  a  supplementary  com- 
plaint a  judgment  was  demanded  that  such  acts  be  declared  null 
and  void,  it  was  decided  that  the  village  itself  or  the  trustees  who 
were  exercising  the  franchise  were  necessary  parties  to  the  action 
and  that  an  injunction  restraining  the  defendants  would  have  no 
practical  effect  upon  the  corporation.74 

§350.  Same  subject;  abutting  owners. — Where  land  is  set 
apart  as  a  public  square  for  the  benefit  of  the  inhabitants  of  a 
town,  an  owner  of  a  lot  abutting  on  the  square  cannot  enjoin 
private  appropriations  of  the  square  for  the  purpose  of  protecting 
purely  public  rights,  but  he  may  for  the  protection  of  his  indi- 
vidual and  common  interests.75 

73.  Village    of    London    Mills    v.  will  be  secured  by  a  court  of  chan- 
White,  208  111.  289,  70  N.  E.  313.  eery.     Price  v.  Methodist  Church,  4 

74.  People  v.  Clark,  70  N.  Y.  518.  Ohio,  515,  547.    Objections  are  raised 

75.  Brown  v.  Manning,  6  Ohio,  to  administering  this  remedy  at  the 
298,  per  Lane,  J. :  "  The  present  case  instance  of  these  parties,  and  we  are 
is  plainly  different  from  any  hereto-  referred  to  the  opinion  of  the  court  in 
fore  decided  by  this  court.  In  Rey-  one  of  the  above  cases,  Smith  v.  Heus- 
nolds  v.  Stark  County,  5  Ohio,  204,  ton,  6  Ohio,  101,  in  which  it  is  said 
the  donation  was  for  county  build-  that  rights  purely  public  are  to  be 
ings.  In  Smith  v.  Heuston,  6  Ohio,  enforced  in  the  name  of  the  State 
101,  the  object  of  the  donation  was  or  of  its  acknowledged  agents.  In  ", 
for  public  buildings  for  Butler  that  case  the  injury,  if  any,  was  done 
county.  By  these  grants  estates  were  to  the  county  and  should  be  repaired 
vested  in  the  county  as  a  municipal  in  a  suit  in  its  name  and  at  the  in- 
corporation, and  became  their  abso-  stance  of  the  proper  parties;  but  the 
lute  property.  Here  the  land  was  set  remedy  was  denied  to  those  plain- 
apart  as  a  public  square,  essentially  tiffs,  because  they  were  volunteers 
for  the  benefit  of  the  inhabitants  of  only,  having  no  individual  interest, 
the  town,  the  due  enjoyment  of  which  The  judge,  however,  proceeds   in  the 

547 


§357 


Parties. 


§  357.  Attorney-General  as  plaintiff. — Courts  of  equity  have 
jurisdiction  upon  information  of  the  Attorney-General  to  restrain 
corporations  from  excess  or  abuse  of  their  franchise  and  from 
violations  of  law  to  the  public  injury.76  And  this  has  long  been  the 
settled  rule  in  England.77  An  information  of  the  Attorney-General 
is  equivalent  to  a  bill  in  chancery  on  information  and  belief,  and 
in  proper  cases  calls  for  an  answer  under  oath;  a  temporary  in- 
junction will  not  usually  be  issued  on  such  an  information  unless 


report  to  show  that  that  bill  could 
not  be  sustained  under  the  well  es- 
tablished principles  applicable  to  the 
case  before  us,  that  one  commoner 
may  prefer  his  suit  to  sustain  the 
common  interests;  Mitford's  PI.  in 
Ch.  145;  Cooper's  Eq.  41;  Beatty  v. 
Kurtz,  2  Pet.  566,  585;  Mayor  of 
York  v.  Pilkington,  1  Atk.  282.  284; 
and  that  one  creditor,  Thompson  v. 
Crown,  4  Johns.  Ch.  619,  638;  Brooks 
v.  Reynolds,  1  Bro.  183;  Goate  v. 
Fryer,  2  Cox,  201,  one  legatee,  Brown 
v.  Ricketts,  3  Johns.  Ch.  553,  or  one 
of  a  great  number  interested  under 
peculiar  circumstances  and  for  con- 
venience representing  the  whole,  may 
litigate  for  the  benefit  of  all.  Adair 
v.  New  River  Co.,  11  Ves.  429;  Lloyd 
v.  Loaring.  6  Ves.  773.  This  bill  is 
not  skillfully  drawn;  yet  it  suffi- 
ciently appears  that  the  plaintiff  is 
one  of  the  inhabitants  of  the  town, 
living  and  holding  property  contigu- 
ous to  the  square,  the  value  of  which 
is  affected  by  the  dedication.  He  is 
therefore  not  a  volunteer  assuming 
to  protect  the  rights  of  others,  but 
entitled  to  this  remedy  for  the  pro- 
tection both  of  his  individual  and  his 
common   interests." 

76.  Attorney  General  v.  Hudson 
River  R.  Co..  9  N.  J.  Eq.  526;  At- 
torney General  v.  Cohoes  Company,  6 
Paige  (N.  Y.),  133;  Commonwealth 
v.   Railway   Co.,  24   Pa.   St.   159;   At- 


torney General  v.  Eau  Claire,  37  Wis. 
400. 

A  suit  to  prevent  board  of 
auditors  from  exercising  inhibited 
powers  of  raising  money  for  public 
works  is  properly  brought  by  the  at- 
torney general  at  the  relation  of  in- 
dividuals resident  in  the  county.  At- 
torney General  v.  Board  of  Auditors, 
40  N.  W.  852,  73  Mich,  53,  per  Camp- 
bell, J. :  "A  preliminary  objection 
was  made  that  the  relators  have  no 
standing  in  court  and  that  the  suit 
is  not  in  proper  form.  If  the  bill  was 
filed  to  obtain  relief  for  them  the 
objection  would  have  force.  But  there 
has  never  been  any  rule  in  equity 
preventing  the  attorney  general  from 
acting  on  relation,  so  long  as  the 
grievance  is  one  affecting  the  public 
interest,  and  he  retains  control  of  the 
suit.  It  is  rather  to  the  defendant's 
advantage  to  have  a  private  person 
responsible  for  costs,  and  this  is  a 
chief  reason  why  such  action  has 
been  allowed." 

77.  Attorney  General  v.  Johnson,  2 
Wilson,  87 ;  Attorney  General  v. 
Forbes,  2  M.  &  Cr.  123;  Attorney 
General  v.  Great  Northern  R.  Co.,  4 
DeG.  &  S.  75;  Attorney  General  v. 
Sheffield  Gas  Co.,  3  DeG..  M.  &  G. 
304;  Attorney  General  v.  Great 
Northern  R.  Co.,  1  Dr.  &  S.  154;  At- 
torney General  v.  Mid  Kent  R.  Co., 
L.  R.  3  Ch.  App.  100;  Attorney  Gen- 


548 


Parties.  §  358 

supported  by  positive  affidavits,  until  the  defendant  has  had  an 
opportunity  to  contradict  it  on  oath  and  has  failed  to  do  so.78  In 
Missouri  it  has  been  decided  that  a  suit  for  an  injunction  may  be 
prosecuted  by  the  Attorney-General  in  the  Circuit  Court  where 
the'  suit  is  such  a  one  as  the  State  could  maintain.79  Where  a 
private  individual  cannot  maintain  a  proceeding  in  his  own  name 
for  an  injunction  he  cannot  do  so  in  the  name  of  the  Attorney- 
General,  it  being  declared  that  a  court  of  equity  may  go  behind 
the  parties  on  the  face  of  the  record  to  see  who  are  the  real  parties 
prosecuting  the  proceeding,  and  that  this  may  be  done  even  where 
the  proceeding  is  in  the  name  of  the  Attorney-General.80 

§  358.  Corporations  as  parties. — In  respect  to  matters  which 
relate  merely  to  the  internal  management  or  control  of  a  corpora- 
tion a  court  of  equity  will  not  interfere  by  injunction  so  as  to 
restrain  de  facto  officers  from  acting  as  such  solely  on  the  ground 
that  their  title  to  office  is  invalid.81  But  under  the  rule  that  public 
bodies  and  officers  may  be  restrained  by  injunction  from  proceed- 
ing in  violation  of  law  as  to  the  prejudice  of  the  public  and  injury 
to  individual  rights,  it  has  been  decided  that  the  Seneca  Nation 
of  Indians,  as  a  public  corporation,  may  maintain  an  injunction 
against  a  person  claiming  to  be  the  president  of  the  corporation 
from  assuming  to  act  as  such  where  the  office  is  in  the  actual  pos- 
session of  another.82  If  a  corporation  is  insolvent,  its  stockholders 
have  no  pecuniary  interest  therein  which  entitles  them  as  parties 
to  ask  that  the  corporate  assets  may  be  ratably  distributed  among 
the  creditors  ;83  but  they  are  proper  parties  plaintiff  in  a  suit  in 
equity  to  enjoin  the  directors  from  mismanagement  and  fraud 

eral  v    Cambridge  Gas.  Co.,  L.  R.  4  81.  People  v.  Conklin,  5  Hun   (N. 

Ch.  App.  71.  Y.),452. 

78.  Attorney  General  v.  Railroad  82.  Seneca  Nation  v.  John,  27 
Companies,  35  Wis.  425,  593;  At-  Abb.  N.  C.  (N.  Y.)  253.  And  see 
torney  General  v.  Cohoes  Co.,  6  Paige.  People  v.  Canal  Board,  55  N.  Y. 
133  390,  393 ;  Reis  v.  Rohde,  34  Hun  (N. 

79.  State  v.  Zachritz,  160  Mo.  307,  Y.),   161. 

65  S.  W.  999,  89  Am.  St.  Rep.  711.  83.  Birmingham   Min.    &   Manuf's 

80.  People  v.  General  Elec.  Ry.  Co.  v.  Mutual  Loan  &  Trust  Co.,  96 
Co..  172  111.  129.  50  K  E.  158.  Ala.  364,  11  So.  368.    See  Cutshaw  v. 

549 


!§'  359  Parties. 

which  threaten  the  corporation  with  insolvency,  especially  where 
the  majority  of  the  directors  are  implicated  in  the  fraud  and  are 
in  possession.84  Ani  the  law  is  said  to  be  well  settled  that  to 
entitle  a  party  to  relief  by  injunction  against  the  illegal  or  fraudu- 
lent proceedings  of  corporate  officers,  the  party  seeking  relief  must 
be  a  stockholder  of  the  corporation.85  Parties,  however,  who  have 
failed  to  comply  with  the  conditions  and  terms  of  their  subscrip- 
tion to  the  capital  stock  of  a  corporation,  without  any  default  on 
the  part  of  the  corporation  or  its  officers  do  not  possess  such  a 
right  or  interest  in  the  stock  as  to  entitle  them  to  an  injunction 
against  acts  of  the  corporation  or  its  officers.86  And  it  has  been 
decided  that  where  an  apprehended  injury  will  injure  equally  all 
the  stockholders  of  a  corporation,  the  corporation  is  ordinarily 
the  proper  party  to  sue  for  an  injunction,  and  not  a  stockholder 
for  himself  and  other  stockholders.87  But  the  collection  from  the 
stockholders  of  a  bank  of  a  tax  on  the  shares  of  stock  which  is  pay- 
able by  them  as  individuals,  will  not  be  enjoined  in  a  proceeding 
brought  by  the  bank  in  its  corporate  name.88  A  party  who  is  about 
to  be  damaged  by  the  act  of  a  company  assuming  to  act  as  a  cor- 
poration, but  never  legally  organized  as  such  may  bring  his  action 
for  an  injunction  against  such  company  in  the  corporate  name.89 
Where,  however,  there  is  no  prayer  for  process  as  to  a  corporation, 
the  fact  that  its  name  is  mentioned  in  the  bill  and  that  a  prayer 
for  relief  against  it  is  contained  therein  does  not  render  it  a  party 
to  the  petition.90 

§  359.  Trustees;  receivers. — If  a  trustee  has  large  and  active 
powers  over  the  trust  estate  he  is  a  necessary  party  to  a  suit  by  a 

Fargo,    8    Ind.   App.    691,    34   N.    E.  87.  American     Refrigerating     and 

376    36  N   E.  650.  Construction  Co.  v.  Lynn,  93  Ala.  610, 

84.  Birmingham   Min.   &   Manuf's       7  So.  191. 

Co   v    Mutual  Loan  &  Trust  Co.,  96  88.  Northwestern   Loan   &   B.    Co. 

Ala.  364,  11  So.  368.  v.  Muggli,  7  S.  D.  527,  64  N.  W.  1122. 

85.  Roebling  v.   First  Nat.   Bank.  89.  Newton   County  Draining  Co. 
30  Fed.  744.    Per  Wallace,  J.  v.  Nofsinger,  43  Ind.  566. 

86    Busey  v   Hooper,  35  Md.  15.  6  90.  Orr    Shoe    Co.    v.    Kimbrough, 

Am.  Rep.  350.  99  Ga.  143.  25  S.  E.  204. 

550 


Pakties. 


359 


stranger  to  defeat  the  trust,91  and  if  his  powers  are  large  enough 
to  enable  him  sufficiently  to  represent  the  beneficiaries,  they  are 
not  necessary  parties  ;92  nor  are  they  in  a  suit  by  the  trustee  against 
a  third  person  for  the  purpose  of  enforcing  the  trust.93  But  if  his 
powers  are  not  sufficient  to  enable  him  fully  to  represent  them,  or 
if  he  is  acting  collusively  or  suspiciously,  they  will  be  allowed  to 
intervene  as  parties.94  The  trustees  of  an  incorporated  religious 
society  are  proper  plaintiffs  in  an  action  to  enjoin  pretended 
trustees  from  interfering  with  the  property  and  affairs  of  the 
society.95    A  trustee,  having  a  naked  legal  title  in  land,  cannot  be 


91.  Mc Arthur  v.  Scott,  113  U.  S. 
340,  396,  5  S.  Ct.  652,  28  L.  Ed.  1015; 
Kerrison  v.  Stewart,  93  U.  S.  155, 
160,  23  L.  Ed.  843. 

92.  Schley  v.  Brown,  70  Ga.  64; 
Winslow  v.  Minnesota,  etc.,  R.  Co., 
4  Minn.  313;  Rogers  v.  Rogers,  3 
Paige  (N.  Y.),  379;  Wakeman  t. 
Grover,  4  Paige  (N.  Y.).  34;  Camp- 
bell v.  Watson,  8  Ohio,  498,  500. 

In  Green  v.  Grant,  143  111.  61,  73, 
32  N.  E.  369,  Wilkin,  J.,  said: 
"Notwithstanding  the  fact  that 
these  appellants  may  have  an 
expectancy  in  the  trust  estate  as 
it  shall  exist  at  the  death  of  the 
mother,  that  does  not  entitle  them  to 
be  made  parties  to  every  suit  that 
the  trustees  may  be  called  to  bring 
or  defend  in  order  to  preserve  their 
trust.  As  was  said  in  American  Bible 
Society  v.  Price,  115  111.  644:  The 
title  is  in  the  trustees,  and  the  duty 
is  imposed  upon  them  to  protect  and 
preserve  this  interest  for  whomsoever 
shall  be  ultimately  entitled  to  it. 
They  are  parties  to  the  suit  and  they 
stand  for  and  represent  in  this  liti- 
gation the  ownership  ultimately  en- 
titled to  this  hind,  and  such  owner- 
ship is  bound  by  their  representa- 
tion." In  Morgan  v.  Rose.  22  N.  J. 
Eq.  583,  593,  Beaslev,  C.  J.,  said:  "The 
defect  now  complained  of  is  that  the 


corporation  has  not  been  subpoenaed, 
but  all  the  corporators  who  are  the 
trustees  are  before  the  court;  there 
can  be  no  pretense  that  on  the  motion 
to  dissolve  this  injunction, the  joinder 
of  the  corporate  body  could  have 
had  the  slightest  effect;  every  cir- 
cumstance of  defense  which  that  body 
could  have  interposed;  has  been  pre- 
sented by  the  trustees,  and  upon  mo- 
tion it  would  be  a  matter  of  course  to 
permit  complainants  to  amend  their 
bill  on  the  point  to  which  exception 
is  taken." 

93.  Shaw  v.  Norfolk,  etc.,  R.  Co., 
5  Gray  (Mass.),  171;  Ash  ton  v.  At- 
lantic Bank,  3  Allen  (Mass.),  220; 
Campbell  v.  Railroad  Co.,  1  Woods, 
376;  Nye  v.  Nightingale,  6  R.  I.  439. 
Under  the  Michigan  statutes  it  is 
competent  for  any  creditor  to  file  a 
bill  against  the  assignees  of  an  insolv- 
ent debtor  to  enforce  the  execution  of 
the  trust;  the  other  creditors  are  not 
necessary  defendants  as  having  oppos- 
ing interests,  nor  need  they  be  joined 
as  plaintiffs,  as  the  statute  author- 
izes separate  action  by  any  creditor. 
Wilhelm  v.  Byles,  60  Mich.  561,  27 
N.  W.  847,  29  N.  W.  113. 

94.  Kerrison  v.  Stewart,  93  U.  S. 
155.  160,  23  L.  Ed.  843;  Winslow  v. 
Minnesota,  etc.,  R.  Co.,  4  Minn.  313. 

95.  Trustees    etc.,    v.    Hoessli,    13 


551 


§  360  Parties. 

restrained  in  equity  from  asserting  his  title  or  conveying  it  away, 
or  compelled  to  convey  it  to  one  to  whom  the  cestui  que  trust  has 
transferred  his  title,  without  joining  the  cestui  que  trust  as  a  party 
to  the  bill.96  A  trustee  to  sell  property  who  has  advertised  it  for 
sale,  being  the  mere  agent  of  the  cestui  que  trust,  and  without  in- 
terest in  the  controversy,  is  a  proper  party  to  a  bill  filed  to  enjoin 
the  sale  of  the  property  embraced  in  the  trust,  on  the  ground  of  a 
fraudulent  combination  on  the  part  of  the  cestui  que  trust  and 
another  person,  to  defraud  the  complainant  of  his  right,  in  the 
trust  property.97  Where,  on  the  appointment  of  a  receiver  of  prop- 
erty, it  passes  into  the  custody  of  the  court  which  makes  the 
appointment,  the  receiver,  as  the  organ  and  agent  of  the  court,  is 
the  proper  party  plaintiff  in  a  suit  for  injunction  to  prevent  inter- 
ference with  the  property.98 

§360.  Sureties;  principal;  administrators. — A  surety  joined 
as  a  defendant  with  his  principal,  against  both  of  whom  judgment 
has  been  rendered,  is  directly  interested  in  the  result  of  an  injunc- 
tion suit  brought  by  a  mortgagee  of  the  principal's  land  to  restrain 
its  sale  by  the  judgment  creditor,  and  is  therefore  properly  per- 
mitted to  intervene  in  the  injunction  suit.99  The  principal  of  an 
agent,  against  whom  a  judgment  has  been  fraudulently  obtained 
and  who  would  have  recourse  against  the  principal  in  case  he 
should  pay  it,  is  a  proper  party  to  restrain  the  execution  of  the 
judgment.1  As  a  rule,  agents  are  not  joined  with  their  principals 
in  injunction  suits  in  accordance  with  the  general  rule  of  equity 
pleading  that  no  person  should  be  made  a  party  who  is  not  inter- 
ested in  the  subject  matter  of  the  suit  and  for  or  against  whom  a 

Wis.  348.  And  see  Beatty  v.  Kurtz,  2  Richmond,  etc.,  R.   Co.  v.  Blake,  49 

Pet.  (U.  S.)  566,  584,  7  L.  Ed.  521.  Fed.  904. 

96.  Richards  v.  Richards,  9  Gray  99.  Ivory  v.  Kempner,  2  Tex.  Civ. 
(Mass.),  313.  A.  474,  21  S.  W.  1006. 

97.  Everett  v.  Winn,  Sm.  &  M.  Ch.  1.  Webster  v.  Skipwith,  26  Miss. 
(Miss.)    67.  341.     A  sheriff,  as  agent  of  plaintiff 

98.  Ex  parte  Chamberlain,  55  Fed.  who  has  obtained  judgment  and  exe- 
704,  where  a  sheriff  was  enjoined  cution,  need  not  be  made  a  party  de- 
from  distraining  property  in  the  fendant  in  a  suit  to  restrain  the  exe- 
hands  of  a  receiver  to  enforce  the  cution,  but  is  bound  to  obey  the  in- 
payment of  an  illegal  tax.     And  see  junction  which  is  served  on  him.  Buf- 

552 


Paeties.  §  361 

decree  cannot  be  made.2  So  one  who  occupies  to  another  the  posi- 
tion of  an  agent  or  servant  merely  of  the  one  whose  acts  or  conduct 
it  is  sought  to  restrain,  should  not  be  made  a  party  defendant.3 
So  an  attorney  is  not  a  proper  party  to  an  action  to  restrain  his 
clients  from  the  prosecution  of  a  suit,  where  nothing  is  alleged 
against  him  except  that  he  was  discharging  his  duty  as  attorney 
in  prosecuting  the  action,  and  no  relief  but  an  injunction  is  de- 
manded against  him.4  But  if  the  principal  is  not  himself  subject 
to  the  jurisdiction  of  the  court  the  rule  that  an  injunction  will  not 
be  allowed  against  an  agent,  where  the  principal  is  not  made  a 
party  to  the  suit,  may  be  dispensed  with.5  An  administrator  who 
has  obtained  an  order  from  the  County  Court  for  the  sale  of  land, 
to  pay  debts  of  his  intestate,  is  a  necessary  party  defendant  to  a 
bill  in  equity,  filed  by  a  person  claiming  the  land  under  a  tax-deed, 
to  enjoin  a  sale  thereof  by  the  commissioners  appointed  to  make 
the  8  ale.6 

§  361.  Taxpayers  as  plaintiff. — The  right  of  a  taxpayer  to 
maintain  a  suit  to  enjoin  the  misappropriation  of  public  funds  is 
one  which,  as  a  general  rule,  is  recognized  by  the  courts.7  A  tax- 
payer may  for  himself,  and  in  behalf  of  the  other  taxpayers  of  a 

fandeau  v.  Edmonson,  17  Cal.  436.  one.     Merritt  v.  Daffin,  24  Fla.  320, 

2.  Woolstein    v.    Welch,    42    Fed.  4  So.  806;  Alston  v.  Rowles,  13  Fla. 
566;  Story,  Eq.  PI.,  §  231.  110,   116;   Scarlett  v.  Hicks,   13  Fla. 

3.  Grover  v.    Swain,   29  Hun    (N.  314;  Loring  v.  Wittich,  16  Fla.  495; 
Y.),  454.  Robinson  v.  Springfield  Co.,  21   Fla. 

4.  Ely  v.  Lowenstein,  9  Abb.  Prac.  203,   234." 

N.  S.  ( N.  Y. )  37 ;  Kirchner  v.  Peder-  la  a  bill  by  an  administrator 

son,  117  Wis.  68,  93  X.  W.  813.  to    enjoin   a  sale    of   real   estate 

5.  Osborn  v.  United  States  Bank,  9  by  a  trustee,  on  the  ground  that  the 
Wheat.   (U.  S.)   738,  6  L.  Ed.  204.  debt  has  been  paid  by  the  debtor  in 

6.  Bevill  v.  Smith,  25  Fla.  209,  6  his  lifetime,  the  heirs  of  the  grantor 
So.  62,  per  Raney,  C.  J. :  "  The  only  are  necessary  parties.  Stewart  v. 
defendant  to  the  suit  at  the  time  the  Jackson,  8  W.  Va.  29.  But  the  bill 
injunction  was  granted  was  Bevill  in  should  not  be  dismissed  for  want  of 
his  capacity  as  commissioner,  and  parties  if  the  plaintiff  desires  to 
there  was  therefore  an  entire  absence  amend  and  is  otherwise  entitled  to 
of  necessary  parties.  In  such  a  case  injunctive  relief.  Jameson  v.  De- 
the  representative  of  the  estate  is  a  shields,  3  Gratt.  (Va.)  4. 
necessary  party  if  not  the  only  proper  7.  District   of   Columbia. — Roberts 

553 


§361 


Parties. 


city,  maintain  a  suit  for  an  injunction  to  prevent  the  collection 
of  bonds  which  have  been  fraudulently  voted  in  aid  of  the  con- 
struction of  a  railroad  ;8  to  prevent  the  unauthorized  or  unlawful 
issuance  of  bonds;9  to  enjoin  the  extension  or  collection  of  an 
entire  tax  that  is  unauthorized  and  void;10  to  prevent  the  making 
of  an  illegal  contract;11  to  restrain  the  carrying  out  of  a  contract 
which  was  not  awarded  to  the  lowest  bidder  as  required  by  stat- 
ute ;12  to  prevent  the  payment  of  public  funds  to  a  charitable  organ- 
ization under  an  alleged  unauthorized  contract;13  to  prevent  the 
unauthorized  creation  of  a  debt  for  the  payment  of  which  a  tax 
must  be  imposed  ;14  to  prevent  the  issuance  of  an  order  in  payment 
of  expenses  of  an  officer  where  such  expenses  are  alleged  to  have 
been  illegally  audited,15  or  to  prevent  a  municipality  from  carrying 
on  a  business  which  its  charter  does  not  authorize  it  to  do.16  And 
it  is  decided  that  an  injunction  will  lie  against  a  school  district  in 
favor  of  a  taxpayer  to  prevent  the  use  of  a  school  house  for  religious 
meetings  and  Sunday  schools,  though  tbe  injury  to  him  may  be 


v.  Bradfield,  12  App.  D.  C.  453,  26 
Wash.  L.  R.  242. 

Florida. — Chamberlain  v.  Tampa, 
40  Fla.  74,  23  So.  572. 

Illinois. — Bradley  v.  Gilbert,  46  111. 
App.  623. 

Michigan. — Savidge  v.  Spring  Lake, 
112  Mich.  91,  70  N.  W.  425. 

Nebraska. — Tukey  v.  Omaha,  54 
Neb.  370,  74  N.  W.  613. 

New  Hampshire. — Blood  v.  Man- 
chester Elec.  L.  Co.,  68  N.  H.  340,  39 
Atl.  335. 

Ohio. — Elyria  Gas  &  W.  Co.  v. 
Elyria,  57  Ohio  St.  374,  49  N.  E.  335. 

Oregon. — Brownfield  v.  Houser,  30 
Oreg.  534,  49  Pac.  843. 

Wisconsin. — Webster  v.  Douglass 
County,  102  Wis.  181,  77  N.  W.  885. 

8.  Nash  v.  Baker,  37  Neb.  713,  56 
N.  W.  376.  The  injunction  in  this 
case  was  against  the  mayor  and  com- 
mon council  of  the  city  of  Kearney 
and  the  Kearney,  etc.,  Railway  Com- 


pany, to  prevent  the  collection  of 
bonds  which  the  company  had,  by 
means  of  false  representations,  pro- 
cured to  be  voted  by  the  city  of 
Kearney. 

9.  Elyria  Gas  &  W.  Co.  v.  Elyria, 
57  Ohio  St.  374,  49  N.  E.  335. 

10.  Knopf  v.  First  Nat.  Bank,  173 
111.  331,  50  N.  E.  660. 

11.  McClain  v.  McKisson,  15  Ohio 

C.  C.  517. 

12.  Holden  v.  Alton,  179  111.  318, 
53  N.  E.  556. 

1,3.  Roberts  v.  Bradfield,   12  App. 

D.  C.  453,  26  Wash.  L.  R.  242. 

14.  Tukey  v.  Omaha,  54  Neb.  370, 
74  N.  W.  613. 

15.  Brownfield  v.  Houser,  30  Oreg. 
534,  49  Pac.  843.  See  Attorney-Gen- 
eral v.  Tynemouth,  75  Law  T.  Rep. 
566. 

16.  Keen  v.  Waycroas,  101  Ga.  588, 
29  S.  E.  42. 


554 


Parties. 


§  361a 


slight,  as  he  has  no  other  remedy.17  But  in  the  absence  of  some 
claim  of  fraud  or  want  of  authority  a  public  board  will  not  be  re- 
strained from  the  acceptance  of  a  public  work  where  the  statute 
provides  a  complete  remedy  by  appeal  from  the  decision  of  the 
board.18 

§  361a.  Same  subject  continued. — In  Indiana  and  several  other 
Spates  the  rule  seems  settled  that  a  taxpayer  of  a  county  may 
maintain  an  action  to  enjoin  the  county  officers  from  doing  illegal 
acts  and  transcending  their  lawful  powers,  when  the  effect  would 
be  to  impose  upon  such  taxpayer  an  unlawful  tax  or  to  increase 
his  burden  by  taxation.19  In  some  other  States  it  has  been  decided 
that  a  taxpayer  cannot  sue  for  himself  and  other  taxpayers  to 
restrain  a  sale  of  the  several  lots  belonging  to  him  and  them  for 
the  purpose  of  collecting  a  tax,  for  their  interests  are  distinct,  and 
one  taxpayer  may  obtain  complete  relief  without  making  another 
a  party.20     In  New  York  a  taxpayer  can  maintain  an  action  to 


17.  Scofield  v.  Eighth  School  Dis- 
trict, 27  Conn.  499. 

18.  Manly  Mfg.  Co.  v.  Broaddus, 
94  Va.  547,  27  S.  E.  438. 

19.  Clay  County  Com'rs  v.  Markle, 
46  Ind.  96,  104,  per  Osborn,  J.:  "It 
has  been  settled  in  this  State  that  the 
remedy  may  be  had  by  any  taxpayer 
in  his  own  name.  Lafayette  City  v. 
Cox,  5  Ind.  38;  Oliver  v.  Keightley, 
24  Ind.  514;  Harney  v.  Indianapolis, 
etc.,  R.  Co.,  32  Ind.  244;  English  v. 
Smock,  34  Ind.  115;  Noble  v.  Vin- 
cennes  City,  42  Ind.  125."  But  see 
Jones  v.  Cardwell,  98  Ind.  331. 

In  favor  of  this  rule  see  also: 

Illinois. — Colton  v.  Hanchett,  13 
111.  615. 

Iowa. — Palo  Alto  Banking  &  I. 
Co.  v.  Mahar,  65  Iowa,  74,  78,  21  N. 
W.  187 ;  Brandirff  v.  Harrison  Co.,  50 
Iowa,  164;  Rice  v.  Smith,  9  Iowa, 
570. 

Maryland. — Mayor  of  Baltimore  v. 
Gill,  31  Md.  375. 


New  Hampshire. — Merrill  v.  Plain- 
field,  45  N.  H.  126. 

Ohio. — State  v.  Ottawa  County 
Com'rs,  7  Ohio  Dec.  34,  5  Ohio  N.  P. 
260. 

Oregon. — Brownfield  v.  Houser,  30 
Oreg.  534,  49  Pac.  843. 

20.  Newcomb  v.  Horton,  18  Wis. 
566;  Bouton  v.  Brooklyn,  15  Barb. 
375.  In  Sherman  v.  Bellows,  24  Or. 
553,  34  Pac.  549,  it  was  held  that  a 
private  citizen  cannot  bring  a  suit 
against  a  State  board  to  enjoin  the 
erection  of  a  public  building  at  a 
place  other  than  prescribed  by  law, 
unless  his  burden  of  taxation  will 
thereby  be  increased.  Moore,  J.,  said : 
"  While  there  is  an  irreconcilable 
conflict  in  the  decisions  upon  the 
right  of  a  taxpayer,  in  his  own  name, 
to  restrain  by  injunction  a  municipal 
corporation  and  its  officers  from  il- 
legally creating  debts,  or  disposing 
of  the  corporate  property  or  funds, 
we  think  the  decided  weight  of  au- 


555 


362 


Pasties. 


prevent  waste,  under  section  1925  of  the  New  York  Code  of  Civil 
Procedure  only  where  the  acts  complained  of  are  ultra  vires  or  are 
tainted  with  fraud.21  In  this  State  also  the  statute  giving  the  right 
to  a  taxpayer  to  maintain  a  suit  to  restrain  an  illegal  official  act 
has  been  construed  as  authorizing  the  issuance  of  a  preliminary 
injunction  in  such  a  suit  only  where  the  alleged  act  is  clearly 
illegal.22 


§  362.  Joinder  of  plaintiffs  generally. — The  rule  in  equity  as 
to  the  joinder  of  parties  is  more  elastic  than  at  law,  and  generally 
when  several  persons  have  a  common  interest  in  the  subject  of  a 
bill  and  a  right  to  ask  for  the  same  equitable  remedy  against  the 
defendant,  they  may  properly  be  joined  as  plaintiffs.23  Parties 
who  have  an  interest  in  the  subject  matter  of  a  suit  may  properly 
be  joined  as  plaintiffs  in  a  proceeding  for  an  injunction  affecting 
such  subject  matter.  Thus,  the  owners  of  several  lots  of  land  may 
join  in  a  bill  to  restrain  a  nuisance  which  threatens  a  permanent 
injury  to  a  passageway  in  which  they  have  a  right  of  way  in  com- 


thority  supports  the  doctrine  that  he 
may  invoke  the  aid  of  a  court  of 
equity  to  obtain  such  relief,  when- 
ever it  is  made  to  appear  that  such 
illegal  act  of  the  corporation  would 
increase  his  burden  of  taxation. 
Hodgman  v.  Chicago,  etc.,  R.  Co.,  20 
Minn.  48;  Willard  v.  Comstock,  58 
Wis.  565,  17  N.  W.  401 ;  New  Orleans 
R.  Co.  v.  Dunn,  51  Ala.  134;  Spring- 
field v.  Edwards,  84  111.  627 ;  McCord 
v.  Pike,  121  111.  288,  12  N.  E.  259.  If 
his  property  will  not  be  subjected  to 
an  additional  burden  of  taxation,  and 
he  will  not  sustain  any  other  per- 
sonal damages,  his  injury  is  not  con- 
tradistinguished from  that  of  all 
other  taxpayers  of  the  municipality, 
and  he  cannot  invoke  the  aid  of 
equity  to  prevent  an  unlawful  cor- 
porate act,  however  much  he  may.  in 
common  with  others,  be  injured. 
Seager  v.  Kankakee  Co.,  102  111.  669. 
His  special  injury  is  the  gist  of  the 


suit,  and,  unless  it  is  alleged  and 
proved,  there  can  be  no  equitable  re- 
lief in  such  cases.  McDonald  v.  Eng- 
lish, 85  111.  236." 

21.  New  York  Central  &  H.  R.  R. 
Co.  v.  Maine,  71  Hun,  417.  24  N.  Y. 
S.  962;  Talcott  v.  Buffalo,  125  N.  Y. 
280,  26  N.  E.  263;  Ziegler  v.  Chapin, 
126  N.  Y.  342,  27  N.  E.  471.  In 
West  v.  City  of  Utica,  71  Hun,  540, 
24  N.  Y.  S.  1075,  it  was  held  that 
where  expenses  had  been  incurred  by 
municipal  officers  in  defending  pro- 
ceedings to  punish  them  for  violating 
an  injunction,  the  payment  of  such 
expenses  by  the  municipality  may  be 
restrained  at  the  suit  of  a  taxpayer, 
brought  to  obtain  a  judgment  pre- 
venting waste  of.  or  injury  to  the 
estate,  etc.,  of  the  municipality. 

22.  Seecomb  v.  Wurster,  83  Fed. 
856. 

23.  Field  v.  Holzman.  93  Ind.  205 ; 
Springer  v.  Lawrence,  47  N.  J.   Eq. 


556 


Paeties. 


§3C2a 


mon,  though  they  derived  their  titles  from  different  grantors.24 
And  several  owners  of  lots,  each  being  held  subject  to  the  restric- 
tion that  none  but  dwelling  houses  should  be  erected  thereon,  may 
join  in  a  suit  to  restrain  a  violation  of  the  restriction.25  And 
several  mill-owners  may  join  as  plaintiffs  to  restrain  the  defendant 
from  diverting  the  water  of  a  reservoir  from  their  mills.26  So 
creditors  whose  claims  are  several  and  not  in  judgment  may  join 
in  an  action  to  restrain  a  debtor  from  fraudulently  disposing  of  his 
property.27  In  Kansas  it  has  been  decided  that  any  number  of 
persons  whose  property  is  affected  by  an  illegal  tax  or  assessment 
may  unite  as  plaintiffs  in  an  action  to  enjoin  the  collection  of  the 
tax,  although  their  interests  are  several  and  not  joint.28 

§  362a.  Joinder  of  plaintiffs;  life  tenants;  tenants  in  common. 
— Life  tenants  may  properly  be  admitted  as  joint  complainants 
with  remaindermen  in  a  suit  to  restrain  a  nuisance  injuring  the 
property,  where  the  costs  of  the  proceedings  are  not  increased,  and 


461,  21  Atl.  41;  Elliott  v.  Bloyd,  40 
Oreg.  326,  67  Pac.  202. 

24.  Cadigan  v.  Brown,  120  Mass. 
493.  Cohen  v.  Wolff,  92  Ga.  199,  17 
S.  E.  1029,  per  Simmons,  J.:  "It 
seems  that  the  court  sustained  the 
demurrer  mainly  upon  the  idea  that 
there  was  a  misjoinder  of  plaintiffs. 
Under  the  particular  facts  of  the  case, 
we  find  no  difficulty  in  reaching  the 
conclusion  that,  though  the  fraudulent 
firm  had  dealt  separately  with  the  pe- 
titioners, and  had  purchased  goods 
from  them  respectively  in  different 
parcels,  these  petitioners  had  a  com- 
mon interest  in  setting  those  fraudu- 
lent purchases  aside.  They  were  the 
common  victims  of  a  general  scheme 
of  plunder,  and  each  had  a  direct  and 
mutual  interest  in  defeating  the 
same.  Those  mortgages  were  the 
common  enemy  of  them  all,  and 
against  the  mortgagees  they  certainly 
had  a  common  cause  of  combat.  We 
think    there    is    no    doubt    that    the 


court,  at  the  instance  of  the  petition- 
ers, complaining  jointly,  could,  under 
the  facts  alleged,  take  jurisdiction  of 
the  case  for  the  purpose  of  declaring 
the  mortgages  void;  and  it  seems  in 
perfect  accord  with  rules  of  equity 
pleading  and  practice  that,  having 
obtained  jurisdiction  for  this  purpose, 
the  court  could  properly  take  charge 
of  all  the  matters  in  controversy  and 
grant  to  each  of  the  plaintiffs  appro- 
priate relief  from  the  consequences  of 
the  fraud  perpetrated  by  the  defend- 
ants, in  pursuance  of  one  and  the 
same  design,  and  affecting  alike  all  of 
the  petitioners.  There  was  no  mis- 
joinder of  plaintiffs." 

25.  Parker   v.    Nightingale,   6  Al- 
len (Mass.),  341. 

26.  Ballou  v.  Hopkington,  4  Gray, 
(Mass.),  324. 

27.  Field  v.  Holzman.  93  Ind.  205. 

28.  Gilmore    v.    Norton.    10    Kan. 
491 ;  Gilmore  t.  Fox,  10  Kan.  509. 


557 


§363 


Parties. 


no  further  amendment  of  the  bill  is  required  or  made,  and  the 
evidence  previously  taken  is  as  pertinent  after  their  joinder  as 
before.29  And  one  of  several  tenants  in  common  can  enjoin  a 
threatened  injury.  Thus,  persons  who  separately  appropriate  the 
water  of  a  stream,  under  certain  regulations  as  to  the  time  and 
manner  of  such  use,  are  tenants  in  common,  and  each  of  them  may 
enjoin  the  diversion  by  a  trespasser  of  any  portion  of  the  water.30 
And  where  a  right  of  way  to  and  a  right  to  maintain  a  cemetery 
lot  for  burial  purposes  are  held  in  common  by  several  persons, 
any  one  or  more  of  them  may  maintain  an  action  to  prevent,  by 
injunction,  the  destruction  or  interruption  of  those  rights,  without 
making  the  others  parties.31 

§363.  Joinder  of  plaintiffs;  abutting  owners,  etc. — Where 
there  is  an  unauthorized  obstruction  of  a  public  street,  as,  for 
instance,  by  an  unauthorized  trolley  railway,  all  of  the  adjacent 
lot  owners  who  sustain  a  special  injury  therefrom  may  be  joined 
as  plaintiffs  in  a  suit  for  an  injunction,  and  no  other  parties  de- 
fendant are  required  than  the  alleged  trespasser.32  And  the  owners 
of  separate  and  distinct  tenements,  who  would  each  be  injured  by 
the  erection  of  a  building  prohibited  by  ordinance,  may  join  in  an 

29.  Rainey  v.  Herbert,  55  Fed.  Minn.  82;  Wetmore  v.  Story.  22 
443  Barb.   414 ;    Pettibone    v.     Hamilton, 

30.  Lytle  Creek  Water  Co.  v.  Per-  40  Wis.  402.  Where  there  is  an  un- 
dew    65  Cal.  447,  4  Pac.  426.  authorized  obstruction,  or  closing  of 

31.  Mitchell  v.  Thorne,  134  N.  Y.  a  public  street,  all  the  adjacent  own- 
536  32  N.  E.  10;  Murray  v.  Hay,  1  ers,  who  sustain  by  such  obstruction 
Barb.  Ch.  59.  a  special  injury,  can  maintain  a  suit 

32.  Hart  v.  Buckner,  54  Fed.  925,  for  injunction  against  the  party  or 
per  Pardee  J. :  "  Owners  of  lots  parties  making  the  obstruction, 
abutting  on  or  adjacent  to  a  public  Dudley  v.  Tilton,  14  La.  Ann.  283; 
street  of  a  city,  even  if  not  owners  Pettibone  v.  Hamilton,  40  Wis.  402; 
of  a  fee  in  the  street,  have  the  right  Griffing  v.  Gibb,  2  Black,  519.  In  such 
of  access  and  the  right  of  quiet  en-  a  suit,  no  other  parties  defendant 
joyment,  and  such  rights  are  prop-  than  the  alleged  trespasser  are  re- 
erty  which  may  be  protected  by  in-  quired.  Railroad  Co.  v.  Ward,  2 
junction  when  invaded  without  legal  Black,  485.  In  the  case  under  pres- 
authority.  Dill.  Mun.  Corp.,  sec.  ent  consideration  it  seems  that  all 
587b;  Dudley  v.  Tilton,  14  La.  Ann.  the  necessary  parties,  if  not  all  the 
283;  Schurmeier  v.  Railroad  Co.,  10  proper  parties,  are  before  the  court. 

558 


Pasties.  §  364 

action  to  restrain  the  erection  of  such  building;  their  common 
danger,  and  common  interest  in  the  relief,  authorizes  their 
joinder.33  Residents  in  the  close  vicinity  of  a  beer  and  pleasure 
garden,  may  also  join  in  a  bill  to  enjoin  such  a  use  of  the  garden 
as  would  render  it  a  nuisance.34  But  it  is  decided  that  a  member 
of  a  class,  having  a  common  interest  in  the  subject  matter,  cannot 
maintain  an  injunction  in  his  own  name,  and  for  his  iudividual 
benefit.  Thus,  an  artisan  of  a  particular  calling,  cannot  alone 
enjoin  a  violation  of  the  statute  restricting  convict  labor,  on  the 
ground  that  such  violation  is  injurious  to  his  trade.  All  of  the 
class  must  join,  or  he  must  sue  in  behalf  of  himself  and  all  others 
who  are  equally  interested  with  him.35 

§  364.  Misjoinder  of  plaintiffs. — In  New  Jersey  it  is  decided 
that  several  persons  owning  distinct  parcels  of  land,  or  occupying 
different  dwellings,  and  having  no  common  interest,  cannot  jointly 
restrain  a  nuisance  in  consequence  of  the  special  injury  to  each 
property,  but  must  proceed  separately  ;36  and  a  joint  bill  in  such  a 
case   is   demurrable   for   misjoinder   of   parties   plaintiff.37      But 

33.  First  Nat.  Bank  of  Mt.  Vernon  contractor  for  imperfect  work  on  a 
v.  Sarlls,  129  Ind.  201.  28  N.  E.  434.  street,  where  the  owner  will  be  as- 
So  the  several  owners  of  abutting  sessed  in  part  for  the  cost,  it  is  a 
lots,  on  a  street  along  which  the  defect  not  to  make  other  abutting 
town  is  threatening  to  construct  a  owners,  similarly  situated,  also  par- 
drain,  may  sue  jointly  for  an  in-  ties,  but  the  defect  may  be  cured  by 
junction.  Town  of  Sullivan  v.  Phil-  amendment,  and  if  the  amendment 
lips,  110  Ind.  320,  11  N.  E.  300;  and  is  insufficient  it  should  be  objected 
to  the  same  effect  is  Tate  v.  Ohio,  to  before  trial.  Lodor  v.  McGovern, 
etc.,  R.  Co.,  10  Ind.  174.  The  rule  48  N.  J.  Eq.  275,  280,  22  Atl.  199, 
of  the  text  would  not  apply  to  a  per  Beasley.  C.  J.  See,  also.  Bond  v. 
distinct  and'  independent  trespass  to  Newark.  19  N.  J.  Eq.  376,  where 
several  property  owners,  or  to  a  the  bill  for  injunction  was  exhibited 
series  of  independent  acts  by  the  on  behalf  of  Bond  and  other  owners 
same   person,   affecting  different  per-  of  lots  on  Union  street. 

sons.    Heagy  v.  Black,  90  Ind.  534.  36.  Demarest  v.  Hardham,  34  N. 

34.  Pfingst  v.  Senn,  94  Ky.  556,  J.  Eq.  469,  where  the  vice  chancellor 
23  S.  W.  358.  cited  Davidson  v.  Isham,  9  N.  J.  Eq. 

35.  Smith  v.  Lockwood,  10  N.  Y.  186;  Morris,  etc.,  R.  Co.  v.  Prudden, 
Leg.  Obs.  12;  1  Code  Rep.  N.  S.  319.  20  N.  J.  Eq.   530. 

In   an  action  by   an  abutting  37.  Hinchman  v.  Paterson  R.  Co- 

owner  to  restrain  the  common  17  N.  J.  Eq.  75;  Jones  v.  Del  Rio,  1 
council   of    a   city    from    paying    a       Turn.  &  Russ.  297. 

559 


§  365  Parties. 

several  persons  may  join  in  a  suit  to  restrain  a  nuisance  which  is 
common  to  all  and  affects  each  in  the  same  way.38  Persons  whose 
interests  are  distinct  and  several,  must  not  be  joined  as  plaintiffs 
for  an  injunction.  Thus,  persons  who  have  been  separately  in- 
dicted for  the  sale  of  intoxicating  liquors  in  the  original  packages 
in  which  they  were  imported,  and  separately  enjoined  from  mak- 
ing such  sales,  cannot  maintain  a  joint  suit  for  an  injunction 
against  such  proceedings,  though  they  are,  respectively,  the  agent 
and  subagent  of  the  same  importer.39  And  where  a  bill  for  injunc- 
tion is  multifarious  by  reason  of  joining  complainants  whose  titles 
to  relief  are  wholly  disconnected,  and  to  whom  the  mode  and 
measure  of  relief,  beyond  injunction,  would  not  be  dependent  on 
the  same  facts,  a  denial  of  the  injunction  is  held  proper.40 

§  365.  One  or  more  for  all. — The  rule  that  one  or  more  plain- 
tiffs may  sue  in  equity  for  the  benefit  of  all  others  similarly  situ- 
ated and  interested,  is  well  settled.  Thus,  in  an  action  to  restrain 
the  sale  of  real  estate,  for  the  purpose  of  collecting  a  sewer  assess- 
ment, some  of  the  distinct  owners  of  separate  parcels  of  the  real 
estate  may  be  joined  as  plaintiffs,  and  ask  the  same  relief  for  all 
others  similarly  situated.41     Some  of  the  citizens  and  land-owners 

38.  Demarest  v.  Hardham.   34  N.  v.   Hay,    1    Barb.    Ch.   59;    Brady   v. 

J.  Eq.  469,  471,  per  Van  Fleet,  V.  C.  Weeks,  3  Barb.  157." 

Tn  Foot  v.  Bronson,  4  Lans.  47,  52,  39.  Woolstein    v.   Welch,    42    Fed. 

Johnson,   J.,  said :      "  It  is  objected,  566.      In    Hudson     v.     Maddison,    12 

on    behalf    of    defendants,    that    the  Sim.  416,  it  was  held,  that  as  each 

plaintiffs,    being   owners   of   separate  of   several    occupants    of   houses   had 

lands,  and  neither  having  any  joint  the    right   to   sue   separately,   to   re- 

or  common  interest  in  the  lands  of  strain  a  nuisance  to  each,  they  could 

the  other,   or  in   the   alleged   injury,  not  sue  jointly,  on  the  ground  "  that 

cannot  join   in   an  action   for   relief.  as  each  of  them  has  a  separate  nuis- 

This  is  undoubtedly  the  general  rule,  ance   to   complain   of,   that   which   is 

but  it  is  subject  to  exceptions,  and  it  an  answer  to  the  one,   is  not  an  an- 

has  been  repeatedly  held,  that  in  case  swer  to  the  other,  and  if,  upon  such 

of  a  private  nuisance  or  any  griev-  a    bill,    a    decree    were    to    be     pro- 

ance  which  is  common  to  several  dis-  nounced,  it  must  be  a  decree  which 

tinct  and  separate  owners,  they  may  would     provide     for     five     different 

unite   in   a  single  action   for   its  re-  cases." 

moval,    or   »to    be    relieved    from    it.  40.  Moore  v.  Hill.  59  Ga.   760. 

Beid  v.  Gifford,  Hopk.  416;  Murray  41.  Keese  v.  Denver,  10  Colo.  112, 

560 


Parties.  §  365 

of  a  town  may,  on  behalf  of  themselves  and  their  fellow  citizens 
of  the  town,  sue  to  enjoin  a  railroad  company  from  proceeding  to 
condemn  their  land  for  railroad  purposes.42  And  some  of  the  tax- 
payers of  a  county  may,  for  themselves  and  for  the  benefit  and  use 
of  all  the  taxpayers  of  the  county,  maintain  an  action  to  enjoin  the 
payment,  and  for  the  cancellation,  of  county  bonds,  as  being  in 
excess  of  the  constitutional  limit  of  county  indebtedness,  it  being 
impracticable  to  bring  all  the  taxpayers  of  the  county  before  the 
court  as  plaintiffs.43  A  suit  to  enjoin  the  collection  of  a  tax  to 
pay  certain  county  bonds  having  been  dismissed,  it  has  been  held 
that  some  of  the  holders  of  the  county  bonds  have  the  right  to  sue 
upon  the  injunction  bond  for  the  benefit  of  all.44  And  the  collection 
of  an  entire  school  district  tax,  assessed  without  authority  of  law, 
may  be  perpetually  enjoined  on  a  bill  brought  by  all  the  taxpayers 
of  the  district  jointly,  or  by  any  number  of  them  on  behalf  of 
themselves  and  all  the  others.45  In  accordance  with  the  rule  that 
persons  having  a  common  interest,  may  sue  in  behalf  of  themselves 
and  others  having  like  interests,  for  purposes  common  and  bene- 
ficial to  all,  it  has  been  held  that  the  regularly  appointed  committee 


15  Pac.  825,  citing  Bull  v.  Read,  13  with  a  court  of  equity,  as  to  how 
Gratt.  (Va.)  78;  Kennedy  v.  Troy,  many  representatives  of  a  class  will, 
14  Hun  (N.  Y.),  308;  Wood  v.  Dra-  or  ought,  to  be  regarded  as  a  fair 
per,  24  Barb.  (N.  Y. )  187;  McClung  representation  of  the  whole  class  in 
v.  Livesay,  7  W.  Va.  329.  the  given  instance.     We  simply  rule 

42.  Macon  &  B.  R.  Co.  v.  Gibson,  that  this  is  a  proper  case  for  some 

85  Ga.  1,  23,  11  S.  E.  442,  per  Bleck-  of  the  citizens  to  represent  all,  and 

ley,  C.  J. :     "  The  interest  being  com-  that  the  number  of  representatives, 

mon  to  all,  as  a  community,  and  the  though    the    smallest    that   could   be 

citizens    being    numerous,    some,    as  recognized,  is  not,  as  matter  of  abso- 

representatives  of  the  class,  may  sue  lute  law,  insufficient." 

for  all.      Phillips  v.  Hudson,  L.  R.  2  43.  Anderson   v.  Orient   Fire  Ins. 

Ch.  243;  Commissioners  v.  Glasse,  L.  Co.,  88  la.  579,  55  N.  W.  348,  where 

R.  7  Ch.  456;  Smith  v.  Swormstedt,  the  five  plaintiffs  brought  the  action 

16  How.  (U.  S.)  288,  302.  14  L.  Ed.  for  about  a  thousand  taxpayers  and 
942.  It  is  true,  that  as  only  two  of  residents  having  a  common  interest, 
the  citizens  have  become  parties,  it  44.  Alexander  v.  Gish,  88  Ky.  13, 
is   rather   a    small   representation   of  9  S.  W.   801. 

the    whole    community.     ...     No  45.  Carlton    v.    Newman.    77    Me. 

doubt   it   is   somewhat   discretionary  408.  1  Atl.  194,  where  the  action  was 

561 
36 


§366  Parties. 

of  a  voluntary  society  of  Lutherans,  may  maintain  a  suit  for  a 
perpetual  injunction  to  prevent  a  disturbance  of  the  possession  and 
enjoyment  by  the  society  of  its  premises.46  And  a  bill  to  enjoin 
the  defendant  from  interfering  with  graves  in  an  alleged  cemetery 
on  ground  belonging  to  the  defendant  may  be  brought  in  the  name 
of  some  of  the  persons  whose  friends  are  buried  there,  in  behalf 
of  themselves  and  all  others  having  a  like  interest.47  And  a  suit 
to  enjoin  the  cutting  of  timber  upon  a  homestead  set  apart  for  a 
wife  and  her  minor  children  is  properly  brought  by  her,  for  herself 
and  on  behalf  of  them.48  Again,  where  the  parties  interested  are 
numerous  and  it  is  impracticable  to  bring  them  all  before  the 
court,  and  they  have  a  common  interest  in  the  subject  of  litiga- 
tion, arising  from  the  fact  that  they  all  hold  land  under  the  con- 
veyance which  the  defendant  fraudulently  seeks  to  defeat,  one  of 
them  may  prosecute  the  action  for  the  benefit  of  all  to  enjoin  the 
consummation  of  the  fraud.49 

§  366.  Injunctions  against  proceedings  at  law. — An  injunc- 
tion to  stay  proceedings  at  law  should  go  against  the  party  who 
institutes  them  and  not  against  the  sheriff  or  other  officer  who  is 
already  under  the  mandate  of  one  court  and  should  not  be  put  in 
peril  of  disobedience  by  discordant  orders  of  conflicting  jurisdic- 
tions. And  an  assignee  for  the  benefit  of  creditors  should  not  be 
a  party  for  the  same  reasons,  as  he  is  accountable  to  another  court 
which  has  the  exclusive  control  of  his  official  action.  And  the 
assignee  and  sheriff  should  not  be  joined  as  defendants  because 
they  act  in  different  capacities  and  on  different  rights  and  have 
no  joint  liability  nor  joint  interest  in  the  relief  sought.50    Where 

brought  by  ten  taxpayers  of  the  dis-  v.  Mahar,  65  Iowa,  74,  21  N.  W.  187. 
trict  for  themselves   and  the  others  50.  Artman-Treichler   Co.  v.  Giles, 

similarly  situated.  155  Pa.  St.  409.  26  Atl.  668.    Lackay 

46.  Beatty  v.  Kurtz,  2  Pet.  (U.  v.  Curtis,  6  Ired.  Eq.  199,  where  it 
S.)   566,  7  L.  Ed.  521.  was  held  that  the  bill  for  an  injunc 

47.  Davidson  v.  Reed,  111  111.  167.  tion  must  be  dismissed  with  costs  as 

48.  Pritehett  v.  Davis,  101  Ga.  to  McNeely,  as  he  "was  acting  as 
236,  28  S.  E.  686.  constable,  a  minister  of  the  law,  and 

49.  Palo   Alto   Banking  &   I.   Co.  had  no  interest  whatever  in  the  con- 

562 


Pabties.  §  367 

a  sheriff,  proceeding  under  a  writ,  acts  in  excess  of  his  authority 
so  as  to  become  a  trespasser  in  respect  to  the  property  which  he 
seizes,  the  owner  of  the  property  may  make  him  a  party  defendant 
in  a  suit  for  an  injunction,  and  it  is  not  necessary  that  the  plain- 
tiffs in  the  writ  be  joined  as  defendants,  unless  they  have  directed 
or  advised  the  sheriff  to  seize  the  particular  property.51  So,  too, 
where  the  officer  is  in  collusion  with  the  judgment  creditor,  or 
otherwise  implicated  in  the  fraud  for  which  a  judgment  is  attacked, 
he  is  a  proper  party.52  And  one  who  united  with  the  vendee  in 
notes  made  for  the  purchase  money  of  land  and  who  is  sued  with 
him  thereon  may  join  with  him  in  a  bill  to  enjoin  proceedings 
in  the  action  and  to  rescind  the  contract.53  But  it  has  been  decided 
that  separate  purchasers  of  different  parcels  of  the  same  lot  cannot 
join  in  a  bill  against  the  former  owner,  to  restrain  the  prosecution 
of  separate  ejectment  suits  commenced  by  him  against  the  com- 
plainants.54 And  devisees  are  held  to  have  no  standing  prior  to 
the  probate  of  a  will  to  maintain  a  proceeding  to  enjoin  actions 
at  law  brought  by  the  heirs  at  law.55 

§  367.  Same  subject ;  joining  officers. — An  officer  who  replevies 
goods  which  are  under  attachment  should  be  made  a  party  in  a 
suit  to  restrain  further  proceedings  in  the  replevin,  as  should  also 
the  officer  who  made  the  attachment,  in  order  that  they  may  both 

troversy,  and  it  was  wrong  to  put  a  party  defendant  to  a  bill  for  an  in- 

him  to  the  expense  of  filing  an  an-  junction  to  restrain  the  execution  of 

swer  " — per  Pearson,  J.,  citing  Edney  such  order  or  judgment.     McLane  v. 

v.  King,  4  Ired.  Eq.  474.     Compare  Manning,  60  N.  C.  60. 

Meinhard    v.    Youngblood,    37    S.    C.  51.  North    v.    Peters,    138    U.    S. 

223,   15  S.  E.  947.  271,   284,    11    S.  Ct.   346,   34  L.   Ed. 

A    sheriff    is   not    a    necessary  936. 

or  proper  party  to  a  bill   for  an  52.  Allen  v.  Medill,  14  Ohio,  445; 

injunction  merely  because  he  has  in  Olin  v.  Hungerford,  10  Ohio,  268. 

his  hands  the  execution  sought  to  be  53.  Elliott  v.  Boaz,  9  Ala.  772. 

enjoined.     Shrader  v.  Walker,  8  Ala.  54.  Wood   v.   Perry,    1    Barb.    (N. 

244.  Y.)    114. 

A  person  acting  r.s  an  officer  55.  Pratt  v.  Hargreaves,  76  Miss. 

of  the  law  under  a  judicial  order  955.  25  So.  658,  71  Am.  St.  Rep.  551. 
or  judgment  ought  not  to  be  made 

563 


§  367 


Parties. 


be  bound  by  the  judgment,  and  be  protected  by  it.56  In  a  case  in 
Rhode  Island  it  is  decided  that  a  citizen  of  that  State  may,  as 
assignee  for  the  benefit  of  creditors,  file  a  bill  in  equity  in  Rhode 
Island  against  a  Massachusetts  creditor  of  the  assignor,  who  had 
obtained  an  execution,  and  the  officer  charged  with  the  execution, 
who  is  a  citizen  of  Rhode  Island,  to  establish  his  trust  and  to 
enjoin  the  sale  of  the  trust  property  levied  on  under  the  execu- 
tion.57    But  it  is  held  to  be  improper  to  make  the  probate  judge 


56.  National  Park  Bank  v.  God- 
dard,  131  N.  Y.  494,  30  N.  E.  566; 
aff'g  16  N.  Y.  Supp.  343.  See,  also, 
Brown  v.  Trousdale,  138  U.  S.  389, 
11  S.  Ct.  308,  34  L.  Ed.  987,  where 
it  was  held  that  "  as  the  plaintiffs 
sought  to  restrain  the  collection  of 
taxes  already  levied  and  any  further 
levies  by  the  county  judge,  and  also 
a  decree  adjudging  the  invalidity  of 
the  bonds,  the  sheriff,  who  was  about 
to  enforce  the  collection,  and  the 
county  judge  were  necessary  parties 
to  the  bill  as  framed,  as  were  the 
bondholders  whose  interests  were  di- 
rectly affected." 

In  an  action  to  restrain  pro- 
ceedings under  an  attachment, 
the  officer  having  the  execution  of 
the  attachments  is  a  proper  party 
defendant.  Meinhard  v.  Youngblood, 
37  S.  C.  223,  15  S.  E.  947. 

On  bills  to  restrain  the  exe- 
cution of  process  or  the  per- 
formance of  official  acts,  the 
sheriff  is  made  a  party,  as  the  de- 
sign of  the  injunction  is  to  restrain 
him  from  acting;  but  where  no  re- 
lief is  prayed  and  no  decree  asked 
against  the  officer,  it  is  not  necessary 
nor  usually  expedient  for  the  sheriff 
to  answer.  If  the  sheriff's  statement 
is  deemed  material/  for  the  interests 
of  the  defendants,  it  may  be  ap- 
pended as  an  affidavit  to  the  answer, 


to  be  used  on  the  motion  to  dissolve, 
or  his  testimony  may  be  taken  by 
leave  of  the  court,  in  the  progress  of 
the  cause.  Brooks  v.  Lewis,  13  N.  J. 
Eq.  214,  215. 

A  commissioner,  abont  to 
make  a  judicial  sale,  is  a  proper 
party  to  a  suit  to  enjoin  the  sale. 
Robertson  v.  Tapscott,  81  Va.  533. 

Register  of  land  office  as 
party.  See  Lyne  v.  Jackson,  1 
Rand.  (Va.)  119,  where,  in  order  to 
prevent  the  issuing  of  a  patent  by 
the  register  of  the  land  office,  the 
register  was  held  to  be  a  proper 
party  defendant. 

57.  Nye  v.  Nightingale,  6  R.  I. 
439.  per  Ames,  C.  J.:  "He  (the  of- 
ficer) is  no  formal  or  unnecessary 
party,  as  has  been  suggested,  whose 
presence  a  court  can  disregard  in 
considering  this  question  of  juris- 
diction; but  one  within  the  criterion 
recognized  in  the  case  of  James  v. 
Thurston,  6  R.  I.  428,  against  whom 
a  decree  is  asked,  and  must  be  had 
in  order  to  the  direct  and  effectual 
relief  by  injunction,  to  which  the 
plaintiff,  as  trustee,  is  entitled. 
Neither  is  he  an  official  party  merely 
within  the  cases  relied  on,  who  rep- 
resents, by  virtue  of  some  special 
law,  the  interests  of  aliens  and  citi- 
zens of  other  States.  He  is  not  pur- 
sued in  his  official,  but  in  his  per- 


564 


Parties.  §  367a 

a  defendant  to  a  bill  in  chancery  which  seeks  to  enjoin  the  settle- 
ment of  an  estate  pending  in  his  court.58 

§  367a.  Joining  officers  continued. — Where  a  tax  collector  of  a 
county  has  levied  upon  property,  for  payment  of  the  taxes  due,  and 
has  advertised  the  same  for  sale,  it  is  proper  to  make  him  a  party 
defendant  to  a  bill  enjoining  the  sale.59  And  park  commissioners 
should  be  made  parties  to  a  bill  in  which  it  is  sought  to  enjoin  the 
extension  by  the  county  clerk  of  a  tax  for  a  park  and  boulevard 
purposes,  the  bill  being  grounded  on  the  claim  that  the  commis- 
sioners had  no  power  to  levy  such  tax.60  And  where  the  mayor  of 
a  city  was  authorized  by  ordinance  to  guarantee  certain  bonds  "  by 
and  with  the  advice  of  the  committee  of  the  city  debt "  it  was  held 
proper  to  make  such  committee  parties  to  a  bill  in  equity  by  tax- 
payers to  enjoin  the  guaranty  of  such  bonds.61  And  in  Illinois  it 
has  been  decided  that  the  president  of  the  board  of  county  com- 
missioners of  Cook  county  and  the  treasurer  of  that  county  are 
necessary  parties  to  a  suit  to  prevent  an  injury  to  taxpayers,  such 
as  the  use  of  the  county  funds  in  paying  the  sheriff  for  the  diet 
of  prisoners  in  the  jail.62 

sonal  character,  as  one  who  is  about  ant's    property   under  execution,   the 

to  commit  a  wrong  under  the  false  sheriff  charged  with  the  execution  is 

pretense  of  official  action.     In  his  of-  bound  to  obey  the  injunction  though 

ficial  character  a  court  of  equity  has  not  made  a  party  to  the  injunction 

no    control    over     him    whatsoever;  suit,   for  the  failure  to  include  him 

but,  notwithstanding  that  character,  in  the  suit  is  a  merely  lormal  defect 

if  he  assumes  a  power  over  property  which  does  not  absolve  him  from  the 

which    the    law   does    not    give    him,  duty  to  obey   the   injunction.       Buf- 

considers    him    as    no    longer    acting  fandeau  v.   Edmondson,   17   Cal.  436. 

under  the  authority  of  his  commis-  58.  McNeills'   Adm'r  v.   McNeills' 

sion,   and   treats     him    as   a  person  Creditors,  36  Ala.  109,  76  Am.  Dec. 

merely   dealing   with   property   with-  320. 

out  any  authority  whatsoever,   as  a  59.  Anderson    v.    State     23    Miss, 

mere  trespasser  to  be  personally  and  459. 

not    officially    pursued    for    his    tres-  60.  Knopf    v.    First    Nat.    Bank, 

passes.     Greene  v.  Mumford,  5  R.  I.  173  111.  331,  50  N.  E.  660;  Knopf  v. 

475."     Where  a  defendant  obtains  an  Chicago  Real  Estate  Board,   173  111. 

injunction  from  the  court  which  has  196,  50  N.  E.  658. 

rendered    judgment    against   him   re-  61.  Goddard     v.     City    of    Provi- 

straining    the    plaintiff,    his    agents,  dence,  18  R.  I.  536,  28  Atl.  765. 

etc.,  from  proceeding  to  sell  defend-  62.  Bradley     v.     Gilbert,    46    111. 

565 


368 


Paeties. 


§  368.  Joinder  of  defendants ;  nuisance. — Where  several  per- 
sons, though  acting  independently,  contribute  to  the  creation  of  a 
nuisance,  as,  for  instance,  where  several  mill  owners  cast  the  refuse 
from  their  mills  into  the  same  stream,  which,  being  commingled, 
is  then  carried  by  the  natural  current  upon  the  complainant's 
premises,  there  is  in  equity  but  one  cause  of  action,  and  they  may 
be  joined  as  defendants  in  the  same  bill  to  enjoin  the  nuisance, 
if  the  complainant  is  entitled  to  equitable  relief.63  And  the  object 
of  such  a  bill  being  single,  that  is,  to  obtain  relief  from  the  common 


App.  623,  aff'd  155  111.  154,  39  N.  E. 
593. 

63.  Lockwood  Company  v.  Law- 
rence, 77  Me.  297,  per  Foster,  J.: 
"  The  acts  of  the  defendants  may  be 
independent  and  several,  but  the  re- 
sult of  these  several  acts  combines 
to  produce  whatever  injury  these 
complainants  suffer,  and  in  equity, 
constitutes  but  one  cause  of  action. 
It  is  otherwise  in  law  where  dam- 
ages are  sought  to  be  recovered. 
There,  only  those  parties  can  be 
joined  who  have  acted  jointly  in  the 
commission  of  the  act."  In  Wood- 
ruff v.  North  Bloomfield  Gravel  Co., 
8  Sawyer  628,  it  is  said  "  there  is  a 
great  difference  between  seeking  to 
recover  damages  at  law  for  an  in- 
jury already  inflicted  by  several 
parties  acting  independently  of  each 
other,  and  restraining  parties  from 
committing  a  nuisance  in  the  future. 
In  equity  the  court  is  not  tied  down 
to  one  particular  form  of  judgment. 
It  can  adapt  its  decrees  to  the  cir- 
cumstances in  each  case  and  give  the 
proper  relief  as  against  each  party 
without  reference  to  the  action  of 
others  and  without  injury  to  either." 
See,  also,  Blaisdell  v.  Stephens,  14 
Nev.  17;  Hillman  v.  Newington,  57 
Cal.  56,  overruling  Keyes  v.  Little 
York    Gold    Co.,    53    Cal.    724.      The 


same  principle  is  expressly  recog- 
nized in  Chipman  v.  Palmer,  77  N.  Y. 
56,  where  the  court  says  that  "  an 
equitable  action  will  lie  to  restrain 
parties  who  severally  contribute  to  a 
nuisance,"  while  it  holds  that  they 
cannot  be  joined  in  an  action  at  law. 
To  the  same  point  are  Duke  of  Buc- 
cleugh  v.  Cowan,  5  Macph.  214; 
Crossley  v.  Lightowler.  L.  R.  3  Eq. 
279;  Thorpe  v.  Brumfitt,  L.  R.  8  Ch. 
App.  650.  In  the  last  case  a  bill  was 
sustained  and  a  decree  granting  a 
perpetual  injunction  affirmed  against 
several  persons  acting  individually 
and  severally  in  obstructing  the 
passage  to  an  inn  by  loading  and  un- 
loading wagons.  Lord  Justice  James 
said :  "  Then  it  was  said  that  the 
plaintiff  alleges  an  obstruction  caused 
by  several  persons  acting  indepen- 
dently of  each  other,  and  does  not 
show  what  share  each  had  in  causing 
it.  It  is  probably  impossible  for  a 
person  in  the  plaintiff's  position  to 
show  this.  Nor  do  I  think  it  neces- 
sary that  he  should  show  it.  The 
amount  of  obstruction  caused  by  any 
one  of  them  might  not,  if  it  stood 
alone,  be  sufficient  to  give  any  ground 
of  complaint,  though  the  amount 
caused  by  them  all  may  be  a  serious 
injury." 


566 


Pasties. 


§369 


nuisance,  it  is  not  multifarious,  though  the  defendants  may  have 
separate  and  diverse  interests.64 

§  369.  Same  subject;  bills  of  peace. — A  bill  in  equity,  in  which 
an  injunction  is  sought  against  numerous  defendants,  in  a  case 
where  the  rights  of  all  of  them  depend  upon  identically  the  same 
question,  both  of  fact  and  law,  and  where  a  court  of  equity  alone 
can  prevent  irreparable  injury  to  complainant,  may  be  sustained 
as  a  bill  of  peace,  upon  the  ground  of  the  inherent  jurisdiction  of 
equity  to  interpose  for  the  purpose  of  preventing  a  multiplicity  of 
suits.  In  such  case,  the  parties,  instead  of  being  severally  sued 
in  equity,  may  be  joined  as  defendants  in  the  same  suit  and  jointly 
enjoined.65    In  an  action  by  some  of  the  taxpayers  of  a  county,  in 


64.  Lockwood,  Company  v.  Law- 
rence, 77  Me.  297,  310,  per  Foster, 
J. :  "  Here  the  same  relief  is  asked 
against  all;  the  same  common  right 
is  claimed;  the  same  general  acts  are 
alleged  against  all  as  contributing  to 
the  same  nuisance.  When  the  object 
of  the  bill  is  single,  to  establish  and 
obtain  relief  for  one  claim,  in  which 
all  the  respondents  may  be  interested, 
it  is  not  multifarious,  though  the  re- 
spondents may  have  different  and  sep- 
arate interests.  Bugbee  v.  Sargent, 
23  Me.  269;  Brinkerhoff  v.  Brown,  6 
Johns.  Ch.  (N.  Y.)  157.  If  the  mat- 
ters are  in  any  material  degree 
blended  so  that  directly  or  indirectly 
they  concern  all  the  respondents,  the 
bill  is  not  multifarious.  Drewry, 
Eq.  PI.  42.  In  Campbell  v.  Mackay, 
1  M.  &  C.  603,  Lord  Cottenham  held 
that  where  the  plaintiffs  have  a  com- 
mon interest  against  all  the  defend- 
ants in  a  suit  as  to  one  or  more  of 
the  questions  raised  by  it  so  as  to 
make  them  all  necessary  parties  for 
the  purpose  of  enforcing  that  com- 
mon interest,  the  circumstance  of 
some  of  the  defendants  being  subject 
to  distinct  liabilities,  in  respect  to 
the  different  branches  of  the  subject- 


matter,  will  not  render  the  bill  mul- 
tifarious. Also  Gaines  v.  Chew,  2 
How.  (U.  S.)  642.  11  L.  Ed.  402." 

65.  Farmington  Village  v.  Sandy 
River  Nat.  Bank,  85  Me.  46,  26  Atl. 
Rep.  965,  per  Foster,  J. :  "  The  bill  is 
in  the  nature  of  a  bill  of  ipeace 
where,  if  the  complainant  is  entitled 
to  relief,  it  may  be  sustained  in  order 
to  prevent  a  multiplicity  of  suits  by 
parties  whose  rights  depend  upon  the 
same  question  involved  in  the  general 
controversy."  Citing  Woodruff  v. 
Mining  Co.,  16  Fed.  25;  Lockwood 
Company  v.  Lawrence,  77  Me.  297; 
Carlton  v.  Newman,  77  Me.  408,  1 
Atl.  194;  Waterworks  v.  Yeomans,  L. 
R.  2  Ch.  App.  8,  12 ;  Brown  v.  Trous- 
dale, 138  U.  S.  389,  11  S.  Ct.  308,  34 
L.  Ed.  987;  Winsor  v.  Bailey,  55  N. 
H.  218.  221.  See,  also,  Harter  v. 
Kernochan,  103  U.  S.  562,  26  L.  Ed. 
411,  where  a  township  in  Illinois, 
and  a  taxpayer  on  behalf  of  himself 
and  other  resident  taxpayers,  filed 
their  bill  to  restrain  the  State  treas- 
urer and  auditor,  the  county  clerk 
and  treasurer,  the  township  collector, 
supervisor  and  clerk  and  two  justices 
of  the  township  and  the  "  unknown 
owners     and     holders "     of     certain. 


56' 


§  370  Pabties. 

behalf  of  themselves  and  the  other  taxpayers,  to  enjoin  the  pay- 
ment of  county  bonds  by  county  officers,  as  being  in  excess  of  the 
constitutional  limit  of  county  indebtedness,  the  county  is  not  an 
indispensable  party  defendant,  where  there  is  no  attempt  to  divest 
it  of  a  right,  or  impose  upon  it  an  obligation;66  but  aliter  of  course 
if  the  property  rights  of  the  county  are  in  any  respect  assailed.67 

§  370.  Same  subject ;  frauds. — In  an  action  in  the  nature  of 
a  creditor's  suit,  by  an  assignee  of  a  judgment,  to  enforce  pay- 
ment, where  one  of  the  original  judgment  plaintiffs  has  claimed 
the  entire  judgment  and  executed  a  release  of  it,  it  is  proper  to 
make  such  a  joinder  of  defendants  that  the  release  may  be  cancelled 
if  fraudulent.68  Where  the  object  of  a  suit  is  single  in  seeking  only 
the  satisfaction  of  the  complainant's  demand  out  of  his  debtor's 
property,  which  is  alleged  to  have  been  fraudulently  conveyed, 
it  is  no  objection  that  the  different  defendants  have  separate  in- 
terests in  distinct  and  independent  questions,  provided  those 
interests  are  all  connected  with,  and  arise  out  of,  the  single  object 
of  the  suit  ;6!>  and  in  such  a  case  the  bill  is  not  multifarious,  because 

bonds,   from  the  collection  of  a   tax  parties,   never   intending  to   pay   for 

to  pay  the  said  bonds,  on  the  ground  the  same,  and  that  this  firm  fraudu- 

that  the  issue  of  the  bonds  was  unau-  lently    mortgaged    the    goods    so   ob- 

thorized.  tained  to  the  other  defendants,  who 

66.  Anderson  v.  Orient  Fire  Ins.  had  conspired  and  colluded  with  the 
Co.,  88  la.  579,  55  N.  W.  348.  firm  in  carrying  out  the  fraudulent 

67.  Moore  v.  Held,  73  Iowa,  537,  scheme  by  which  the  goods  were  ob- 
35  N.  W.  G23 ;  Turner  v.  Cruzen,  70  tained,  it  cannot  be  seriously  con- 
Iowa,  202,  30  N.  W.  483.  tended  that  there  was  any  misjoinder 

68.  Bragg  v.  Gaynor,  85  Wis.  of  defendants.  Each  and  all  of  the 
468,   55    N.    W.    919.  defendants      were      necessary       and 

69.  Handley  v.  Heflin,  84  Ala.  proper  parties  to  any  proceeding  in- 
600,  4  So.  725;  Hinds  v.  Hinds,  80  stituted  for  setting  aside  the  frauds 
Ala.  225;  Russell  v.  Garrett,  75  Ala.  complained  of.  The  mortgagees  were, 
348;  Randle  v.  Boyd,  73  Ala.  282.  as  such,  necessary  and  proper  par- 
Cohen  v.  Wolff,  92  Ga.  199,  17  S.  E.  ties,  because  they  were  entitled  to  j, 
1029,  per  Simmons,  J.:  "  In  view  of  be  heard  upon  the  question  of  setting 
the  charges,  that  the  firm  of  Wolff  &  the  mortgages  aside,  and,  moreover, 
Co.  being  insolvent,  fraudulently  pro-  it  was  alleged,  as  has  been  seen,  that 
cured  for  themselves  a  false  commer-  they  were  co-conspirators  from  the 
cial  rating,  and  upon  the  credit  thus  very  incipiency  of  the  fraudulent 
obtained  bought  goods   from  various  scheme." 

568 


Pakties.  §371 

it  joins  as  defendants  several  fraudulent  grantees,  or  donees  who 
claim  different  portions  of  the  debtor's  property  by  distinct  con- 
veyances.70 Persons  jointly  implicated  in  fraudulent  acts  may  be 
joined  as  defendants,  and  as  such  enjoined,  though  the  gains  they 
realize  by  such  acts  are  several.71  Fraudulent  grantees  may  be 
joined  as  defendants,  though  they  hold  by  separate  conveyances, 
and  are  not  connected  in  interest  with  each  other.72  And  one  who 
is  about  to  receive  a  conveyance  of  land,  in  consummation  of  a 
conspiracy  to  defraud  the  true  owner  thereof,  is  a  proper  party 
defendant  to  an  injunction  suit  to  defeat  the  conspiracy.73  Where 
the  president  and  secretary  of  a  natural  gas  company,  with  the 
consent  of  only  one  director,  and  without  authority  give  a  person 
permission  to  take  gas  from  a  well,  free  of  charge,  they,  the  con- 
senting director,  and  the  person  receiving  the  permit,  are  joint 
wrongdoers,  and  as  such  may  be  jointly  enjoined.74 

§  371.  Joinder  of  patent  owner  as  defendant  where  licensee 
sues. — A  licensee,  having  the  exclusive  right  to  manufacture  and 
sell  a  patented  article,  may  enjoin  the  owner  of  the  patent  from  an 
infringement,  and  may  join  with  him,  as  defendants,  all  others 
who  may  confederate  with  him  in  the  infringement;  but  he  can- 

70.  Collins    v.    Stix    (Ala.    1892),  71.  Andrews  v.  Pratt,  44  Cal.  309, 

11  So.  380,  where  the  court  said:  "A  per  Niles,   J.:      "The    gist    of    the 

fraudulent   grantee   cannot  complain  action  is  fraud.    The  defendants  have 

that  he  is  joined  with  other  fraudu-  one  common  interest  among  them  all, 

lent     grantees,     among     whom     the  centering  in  the  point  in  issue  in  this 

debtor  has  scattered  the  various  par-  cause,  and  which  is  not  severed  by 

eels  of  his  property  in  the  execution  the  mere  division  of  the  gains.    Ward 

of  his  scheme  to  hinder,  delay,  or  de-  v.  Duke,  etc.,  2  Ans.  469;   Fellows  v. 

fraud      his      creditors.        It     would  Fellows,  4  Cow.  (N.  Y.).  682;  Brink- 

greatly  aid  in  the  accomplishment  of  erhoff  v.  Brown,  6  Johns.  Ch.  (N.  Y.) 

the    fraudulent    purpose,    if    the    de-  139." 

frauded  creditor  was  forced  to  bring  72.  Hamlin    v.    Wright,    23    Wis. 

a  separate  suit  to  follow  each  parcel  491. 

in  the  hands  of  the  person  who  had  73.  Palo  Alto  Banking  &  I.  Co.  v. 

wrongfully  acquired  it.     It  is  neces-  Mahar,  65  Iowa,  74,  21  N.  W.   187. 

sary,  for  the  due  protection  of  cred-  74.  Henshaw    v.    People's    Mutual 

itors,  that  they  be  enabled  to  attack  Natural  Gas  Co.,  132  Ind.  545,  32  N. 

the  whole  fraudulent  scheme  in  one  E.  318. 
suit." 

569 


372 


Pabties. 


not  enjoin  such  third  persons,  unless  the  owner  of  the  patent  be 
made  a  party,  either  as  plaintiff  or  defendant.75 

§  372.  Joinder  of  plaintiffs  at  law  as  defendants  in  equity. — 

The  fact  that  a  number  of  actions  at  law  arise  from  the  same  occur- 
rence, and  depend  upon  the  same  matters  of  fact  and  law,  is  not 
sufficient,  unless  the  plaintiffs  have  a  common  interest,  to  warrant 
the  enjoining  of  the  several  actions  and  a  joinder  of  the  several 
plaintiffs,  in  a  single  suit  in  equity,  as  defendants,  in  order  to 
prevent  a  multiplicity  of  suits.  This  rule  was  applied  in  Missis- 
sippi, where  several  different  premises  were  set  on  fire  by  sparks 
from  a  railroad  engine,  and  the  company  enjoined  the  different 
owners  from  proceeding  with  their  several  actions  for  damages, 


75.  Waterman  v.  Shipman,  55 
Fed.  982}  986,  per  Wallace,  J.:  "If 
the  owner  of  the  legal  title  to  the 
patent  had  not  been  made  a  party  to 
the  suit,  undoubtedly  the  bill  by  the 
complainant  could  not  be  sustained 
against  the  other  defendants.  A 
mere  licensee  cannot  sue  strangers 
who  infringe.  In  such  a  case,  re- 
dress is  obtained  through,  or  in  the 
name  of  the  owner  of  the  patent.  But 
there  is  no  reason  or  authority  for 
the  proposition  that  a  licensee  who 
has  the  exclusive  right  to  manu- 
facture and  sell  a  patented  article, 
cannot  maintain  a  suit  in  equity 
against  the  owner  of  the  patent,  if 
the  latter  is  guilty  of  an  infringe- 
ment, by  making  or  selling  himself, 
to  redress  the  wrong  occasioned 
thereby,  or  that  such  a  suit  does  not 
arise  under  the  patent  laws  of  the 
United  States.  The  case  of  Little- 
field  v.  Perry,  21  Wall.  205, 
223,  22  L.  Ed.  577.  is  a  direct 
authority  in  favor  of  the  right 
of  the  licensee  to  maintain  such  an 
action.  In  that  case  the  Supreme 
Court  said:  '  A  court  of  equity  looks 
to  substance,  rather  than  form.  When 


it  has  jurisdiction  of  the  parties,  it 
grants  the  appropriate  relief,  with- 
out regard  to  whether  they  come  as 
plaintiff  or  defendant.  In  this  case, 
the  person  who  should  have  protected 
the  defendant  against  all  infringe- 
ments has  become  himself  the  in- 
fringer. He  held  the  legal  title  to 
the  patent  in  trust  for  his  licensees. 
He  has  been  faithless  to  his  trust, 
and  courts  of  equity  are  always  open 
for  the  redress  of  such  a  wrong. 
This  wrong  is  an  infringement.  Its 
redress  involves  a  suit,  therefore, 
arising  under  the  patent  laws;  and 
of  that  suit  the  Circuit  Court  has 
jurisdiction.'  If  the  licensees'  rights 
have  been  infringed  by  the  owner, 
and  third  persons  confederating  with 
the  owner,  there  is  no  reason  why  all 
the  infringers  should  not  be  joined 
as  defendants.  Perry  v.  Littlefield,  17 
Blatchf.  272,  285.  In  such  a  case  it 
is  quite  immaterial  to  the  other  de- 
fendants whether  the  owner,  when 
made  a  party  to  the  suit,  is  a  com- 
plainant or  a  defendant.  It  suffices, 
so  far  as  they  are  concerned,  that  all 
the  parties  are  present  who  have  any 
interest  in  the  controversy,  and  that 


70 


Pabties.  §  373 

and  joined  them  as  defendants  in  a  single  suit  in  equity.76  In  a 
bill  for  an  injunction  against  the  enforcement  of  a  judgment, 
affecting  realty,  all  the  holders  of  the  judgment  must  be  made 
parties  defendant,  as  a  different  practice  would  serve  to  complicate 
the  execution  of  the  judgment,  and  to  produce  multiplicity  of 
suits.77  But  owners  of  several  judgments  cannot  be  joined  as  de- 
fendants to  restrain  sale  under  each.78 

§  373.  Defect  of  parties  defendant. — While  a  temporary  in- 
junction may  sometimes  be  issued  against  a  merely  nominal  party, 
to  restrain  him  from  doing  something  that  may  affect  the  plain- 
tiff's rights,  before  service  can  be  had  upon  the  real  party  with 
adverse  interests,  yet  no  attempt  should  be  made  by  a  plaintiff, 
however  futile  it  may  prove  eventually,  to  adjudicate  upon  the 
ultimate  rights  of  the  real  parties  in  interest,  without  making 
them  parties  defendant.  Thus,  in  an  action  by  the  State  of  Kansas 
to  perpetually  enjoin  a  city  and  its  officers  and  certain  county 
officers  from  collecting  taxes  to  pay  interest  on  certain  city  bonds 
and  to  have  the  bonds  declared  null  and  void,  there  was  held  to 
be  a  defect  of  parties  defendant,  because  the  bondholders  were  not 
joined,  as  they  alone  were  the  only  persons  whose  rights  would  be 
substantially  affected  by  declaring  the  bonds  to  be  invalid,  or  by 
enjoining  the  tax  for  the  payment  of  accrued  interest,  and  that 
the  other  defendants  had  no  interest  in  having  the  bonds  declared 
valid.79  And  the  court  refused  to  finally  enjoin  the  treasurer  and 
sheriff  of  a  county  from  the  collection  of  taxes  levied  by  a  school 
district,  because  the  officers  of  the  school  district  directly  interested 

a    decree    will    definitely    determine  penter    v.    Hindman,    32    Kan.    601, 

their    rights   as    between    themselves  607;     and     see     Wiser    v.     Blachly, 

and  the  owner  of  the  patent,  as  well  1  Johns.  Ch.  438.    In  State  v.  Ander- 

as  between  themselves  and  the  com-  son,  5  Kan.  90,  which  was  a  suit  to 

plainant."  enjoin  the  State  treasurer  from  pay- 

76.  Tribbette    v.    Illinois    Central  ing  over  the  proceeds  of  land  sales  to 
It.  Co..  70  Miss.  182,  12  So.  32.  certain    railroad    companies,    it    was 

77.  Berry    v.     Berry,     3     Monroe  held  that  a  final  injunction  would  not 
(Kv.),  263.  De   granted    until    the   railroad    com- 

78.  Gates  v.  Lane,  44  Cal.  392.  panies  were  made  parties  defendant, 

79.  City    of    Anthony     v.     State,  as  they  were  the  real  parties  in  in- 
49    Kan.    246,    30    Pac.    488;     Jar-  terest. 

571 


§  373  Pabties. 

in  the  collection  of  the  taxes  were  not  made  parties  defendant.80 
And  where  abutting  owners  bring  an  action  against  the  county 
clerk  and  county  treasurer,  to  enjoin  the  collection  of  an  assess- 
ment levied  by  a  city,  the  city  must  be  joined  as  a  defendant.81 
And  in  a  proceeding  to  restrain  the  collection  of  an  assessment, 
the  contractor  who  did  the  work  for  which  the  assessment  was 
made  is  a  proper  and  necessary  party,  as  he  could  look  only  to  this 
assessment  for  his  compensation,  and  had  a  right  to  be  in  court  to 
defend  his  interest.82  But  a  railroad  company  is  not  a  necessary 
party  defendant  in  an  action  by  a  township  against  county  com- 
missioners and  the  county  clerk,  to  perpetually  enjoin  them,  as 
agents  of  the  township,  from  subscribing  to  the  stock  of  the  com- 
pany, and  executing  township  bonds  in  payment  for  the  stock, 
under  the  pretended  authority  of  a  special  election,  where  it  is 
alleged  that  the  conditions  precedent  to  the  power  to  call  the  elec- 
tion and  make  the  subscription  were  not  complied  with,  for  in 
such  a  case  the  rights  of  the  company  are  not  adjudicated.83  And 
a  demurrer  to  a  complaint  for  an  injunction  for  defect  of  parties 
defendant  which  is  merely  technical  will  not  be  sustained  unless 
the  omitted  party  is  indispensable  to  the  relief  sought.84 

80.  Atchison,  etc.,  R.  Co.  v.  Wil-  road  company,  and  as  it  is  clearly 
helm,  33  Kan.  206.  In  the  similar  alleged  in  the  petition  that  no  sub- 
case of  Voss  v.  School  District,  18  scription  had  been  made,  and  that 
Kan.  467,  it  was  held  that  the  treas-  the  purpose  of  the  action  was  to  en- 
urer  and  sheriff  were  merely  nom-  join  a  wrongful  and  illegal  subscrip- 
inal  parties,  while  the  school  district  tion,  we  do  not  think  the  company 
was  the  real  party  in  interest  and  was  a  necessary  party  in  the  action, 
properly  joined  as  defendant.  See,  Of  course,  the  company  cannot  be  af- 
also,  on  the  same  point,  Hays  v.  Hill,  fected  by  any  of  these  proceedings, 
17  Kan.  360.  because    the    law    before    it    decides 

81.  Gilmore  v.  Norton,  10  Kan.  against  any  party  or  person  gives  an 
491 ;  Gilmore  v.  Fox,  10  Kan.  509.  opportunity    for    such    person    to   be 

82.  Matter  of  Bridgford,  47  N.  Y.  heard.  Land  Grant  R.  Co.  v.  Com- 
St.  Rep.  676.  missioners,  etc,  6  Kan.  256;    Paola. 

83.  Dixon  Township  v.  Commis-  etc.,  R.  Co.  v.  Com'rs,  16  Kan.  302; 
sioners,  etc.,  25  Kan.  519,  per  Hor-  Atchison,  etc.,  R.  Co.  v.  Com'rs,  12 
ton,  C.  J. :     "  The  election  or  vote  to  Kan.  127." 

subscribe  for  stock  did  not  constitute  84.  Hughson    v.    Crane,    115    Cal. 

or  form  any  contract  with  the  rail-       404,  47  Pac.  120. 

572 


Pabties. 


374 


§  374.  Dismissal  for  want  of  necessary  parties. — Where  it 
appears  from  the  record  that  the  merits  of  an  injunction  suit 
cannot  be  determined  without  essentially  affecting  the  rights  of 
persons  in  the  subject  matter  who  are  not  parties,  and  whose  names 
do  not  appear  in  the  record,  the  court  of  last  resort  will  refuse, 
on  appeal,  to  examine  the  facts,  and  will  dismiss  the  complaint  for 
want  of  parties,  though  the  court  of  first  instance  could  and  should, 
in  such  a  case,  have  ordered  the  necessary  parties  to  be  brought  in.85 
A  bill  by  taxpayers  to  restrain  the  payment  of  money  by  a  village, 
under  a  contract,  is  fatally  defective  in  not  making  the  person 
entitled  to  the  payment,  or  his  successor  in  interest,  a  party 
thereto,  as  in  such  case  the  person  entitled  to  payment  would  not 
be  concluded  by  a  decree  against  the  village,  and  therefore  it  would 
be  subject  to  further  litigation.86 


85.  Beasley  v.  Shively,  20  Or.  508, 
26  Pac.  846.  This  was  a  suit  to  en- 
join the  construction  of  a  wharf,  and 
on  appeal  to  the  Supreme  Court  it 
was  held  it  must  be  dismissed  because 
the  land-owners  in  front  of  the  whari 
were  not  parties,  citing  Russell  v. 
Clark,  7  Cranch,  69;  Young  v.  Cush- 
ing,  4  Biss.  456.  Bean,  J.,  said: 
"  The  better  practice  in  the  Circuit 
Courts  is  to  order  the  necessary 
parties  to  be  brought  in;  but  we 
have  no  such  authority,  and  could 
only  in  a  proper  case,  and  where  the 
equities  justify,  remand  the  cause  to 
the  court  below  for  that  purpose. 
.  .  .  We  do  not  feel  justified  to 
remand  this  case  to  the  court  below 
for  the  purpose  of  having  parties 
brought  in.  Nor  does  it  matter  that 
the  parties  to  this  suit  make  no  ob- 
jection on  account  of  a  want  of  par- 
ties. Where  that  fact  appears,  as  in 
this  case,  the  court  will,  on  its  own 
motion,  refuse  to  proceed  further  in 
the  case.  A  decision  of  the  case  now 
before  us  in  favor  of  either  of  the 
parties  would,  in  effect,  be  an  adjudi- 
cation that  the  tide  land-owner  does 
not    have    the     right    to    construct 


wharves  in  front  of  his  property,  a 
question  we  are  unwilling  to  examine 
on  this  record."  In  Morgan  v.  Rose, 
22  N.  J.  Eq.  583,  592,  Beasley,  C.  J., 
said:  "The  non-joinder  of  an  es- 
sential party  does  not  necessarily  lead 
to  the  dissolution  of  an  injunction; 
the  general  rule  is  that  it  will  have 
that  effect,  but  such  rule  is  not  uni- 
versal. ...  I  think  the  true 
principle  is,  that  when  the  injunc- 
tion will  have  the  effect  of  injuring, 
in  any  material  respect,  the  rights  of 
absent  persons,  the  court  will  not, 
unless  in  case  of  special  necessity, 
interfere  with  such  rights,  but  that 
when  the  absence  of  persons  as  par- 
ties constitutes,  so  far  as  the  grant- 
ing or  refusing  of  the  injunction  is 
concerned,  a  formal  rather  than  a 
substantial  defect,  there  is  no  ground, 
arising  from  such  fact,  for  a  refusal 
of  the  temporary  aid  of  the  court,  if 
such  aid  appears,  under  the  circum- 
stances, to  be  equitable."  Adopted 
in  Elkins  v.  Camden,  etc..  R.  Co.,  36 
N.  J.  Eq.  241. 

86.  Hoppock  v.  Chambers,  96  Mich. 
509,  56  N.  W.  86. 


573 


Appeals. 

CHAPTER  XL 

Appeals. 

Section  375.  Useless  appeals. 

376.  Restricting  and  protecting  appeals. 

377.  Who  may  appeal. 

378.  Injunction  order  operating  as  final  decree. 

379.  Appeals  in  Alabama. 

380.  In  Arizona — Arkansas. 

381.  In  California,  Colorado,  Dakota. 

382.  In  Delaware,  District  of  Columbia  and  Florida. 

383.  In  Georgia. 

384.  In  Illinois. 

385.  In  Indiana. 

385a.  In  Iowa — Kansas. 
385b.  In  Kentucky. 

386.  In  Louisiana. 

387.  In  Maryland. 
387a.  In  Michigan. 
387b.  In  Minnesota. 
387c.  In  Missouri. 

388.  In  Montana. 
388a.  In  Nebraska. 

389.  In  New  Jersey. 

390.  In  New  York. 

390a.  In  North  Carolina — In  North  Dakota. 

391.  In  Ohio,  Oklahoma,  Pennsylvania. 

392.  In  South  Carolina. 
392a.  In  Texas— Utah. 

393.  In  Virginia. 
393a.  In  Washington. 

394.  In  Wisconsin. 

395.  Appealable  decrees  in  Federal  courts. 

396.  Appeals  to  Circuit  Court  of  Appeals. 

397.  Same  subject — Assignment  of  errors. 

398.  Reversals  by  the  Federal  Circuit  Court  of  Appeals. 

399.  Joinder  of  joint  defendants  in  writ  of  error — Federal  rule. 

400.  Effect  of  appeal— Federal  rule — Stay  pending  appeal. 

401.  In  Alabama — Arkansas. 
401a.  In  California. 

402.  In  Florida. 

402a.  In  Georgia — Illinois. 
402b.  In  Iowa. 
402c.  In  Louisiana. 


574 


Appeals.  §  375 

402d.  In  Michigan — Minnesota — Montana. 

403.  In  New  Jersey. 

404.  In  New  Jersey,  continued. 

405.  In  New  York. 

406.  In  North  Carolina — Ohio. 
406a.  In  Texas. 

406b.  In  Washington. 

406c.  In  West  Virginia — Wisconsin. 

406d.  In  England. 

407.  Appeals  from  decree  dismissing  bill. 

408.  Objections  barred  on  appeals. 

409.  Appeal  record. 

410.  Conclusiveness  of  findings. 

410a.  Scope  of  review  by  Appellate  Court. 

411.  Appeal  or  mandamus. 

Section  375.  Useless  appeals. — A  court  of  equity,  as  before 
seen,  does  not  exercise  its  jurisdiction  for  the  purpose  of  discussing 
abstract  or  academic  questions  ;J  and  an  appeal  will  not  ordinarily 
be  entertained  from  an  injunction  order  where  the  matter  to  which 
it  relates  is  wholly  past  and  irrevocable.2  But  the  right  of  appeal 
from  the  denial  of  a  preliminary  injunction  is  not  taken  away 
by  the  fact  that  the  act  sought  to  be  enjoined  has  been  accom- 
plished, thus  rendering  an  order  of  reversal  inefficacious ;  in  such 
a  case  the  appellate  court  may  hear  the  appeal  and  adjudge  the 
right  upon  which  the  preliminary  injunction  should  have  been 
granted.8    The  judgment  of  a  court  refusing  an  injunction,  though 

1.  §  50,  ante.  could   have  no   practical  effect,   and 

2.  See  §  41,  ante,  as  to  injunctive  therefore  the  appeal  was  dismissed, 
relief  for  past  acts.  In  the  Matter  of  O'Brien,  J.,  said:  "  The  demands  of 
Manning,  139  N.  Y.  446,  34  N.  E.  actual  practical  litigation  are  too 
931.  In  this  case  on  appeal  from  an  pressing  to  permit  the  examination 
order  of  the  general  term,  which  re-  or  discussion  of  academic  questions, 
versed  a  special  term  order  granting  such  as  this  case  in  its  present  situa- 
a  mandamus,  requiring  the  mayor  of  tion  presents.  People  v.  Phillips,  67 
Albany  to  publish  lists  of  inspectors  N.  Y.  582;  People  v.  Walter,  68  N.  Y. 
etc.,  as  prescribed  by  law,  it  was  held  408 ;  People  v.  Troy,  82  N.  Y.  575 ; 
by  the  Court  of  Appeals  that,  as  the  Bryant  v.  Thompson.  128  N.  Y.  426, 
power    of    persons    so   appointed    ex-  28  N.  E.  522. 

pired  immediately  after  the  election  3.  Terhune  v.  Midland  R.  Co.,  36 

was  held,  for  which  the  appointment       N.  J.  Eq.  318. 
was  made,  any  decision  on  the  appeal 

575 


§  376  Appeals. 

erroneous  when  made,  will  not  be  interfered  with  on  appeal,  when 
the  act  sought  to  be  enjoined  has  been  authorized  by  the  Legislature 
between  the  rendering  of  the  judgment  and  the  hearing  of  the 
appeal.4 

§  376.  Restricting  and  protecting  appeals. — An  injunction  may 
not  be  granted  where  the  effect  would  be  practically  to  permit  an 
appeal  in  cases  in  which  the  statute  refuses  it.5  And  an  injunction 
should  not  be  granted  where  the  appropriate  and  only  proper 
remedy  is  by  appeal.  Thus,  an  order  of  a  County  Court  establish- 
ing a  ferry,  is  a  judicial  act,  which  cannot  be  set  aside  except  on 
an  appeal,  and  the  exercise  of  the  privilege  conferred  thereby  can- 
not be  prevented  or  restrained  by  an  order  of  injunction  issued  by 
another  court  in  an  independent  and  distinct  action  or  proceeding.6 
And  where  a  motion  to  continue  a  temporary  injunction  is  denied 
on  the  merits,  a  second  application,  without  obtaining  leave  to 
renew,  will  not  ordinarily  be  entertained  by  another  judge  of  the 
same  court,  for  this  would  be  asking  one  judge  to  sit  in  appeal 
from  the  decision  of  another  judge  of  the  same  court.7    And  a  court 

4.  Linn  County  v.  Hewitt,  55  Iowa,  said :  "  It  is  directly  in  the  teeth 
505,  8  N.  W.  340.  of  the  statute  to  use  this  or  any  other 

General  Note. — As  to  action  for  method  of   having  the  judgment  set 

damages  on  an  injunction  bond  pcnd-  aside     which     the     statute    intended 

ing  appeal  from  an  order  of  dissolu-  should  be  final." 

tion,  see  §  183,  ante.  As  to  allow-  6.  Stahl  v.  Brown,  84  Ky.  325,  1 
ance  to  defendant  as  damages  of  S.  W.  540.  and  see  §  29,  ante. 
counsel  fees  on  appeal,  see  §  202,  7.  Williams  v.  Huber,  25  N.  Y. 
ante.  As  to  reference  to  ascertain  in-  Supp.  327,  per  McAdams,  J.:  "No 
junction  damages  pending  an  appeal,  legal  ground  for  reargument  was 
eee  §  226.  ante.  As  to  appeal  from  made  to  appear,  and  Judge  Gilder- 
order  confirming  referee's  report  as  sleeve  could  not  be  expected  to  re- 
to  damages,  see  §  244,  ante.  As  to  consider  questions  which  the  chief 
appeals  from  orders  in  contempt  pro-  judge  had  already  decided  adversely 
ceedings,    see   §§    283,    284,   ante.  to  plaintiff.     This  would  be  to  allow 

5.  Odom  v.  McMahan,  67  Tex.  292,  an  appeal  from  one  co-ordinate  court 
3  S.  W.  286.  The  rule  in  this  case  to  another — a  'practice  neither  en- 
was  applied  to  a  justice's  judgment,  couraged  nor  sanctioned.  People  v. 
the  enforcement  of  which  was  en-  National  Trust  Co.,  31  Hun  (N.  Y.), 
joined  though  the  statute  made  it  20 ;  Mayer  v.  Apfel,  32  N.  Y.  Super, 
non-appealable,  and  as  Willie,  C.  J.,  729;  Hallgarten  v.  Eckert,  1  Hun  (N. 

576 


Appeals. 


§377 


of  equity  will  not  entertain  a  bill  to  restrain  prosecutions  under  a 
municipal  ordinance  on  the  ground  of  the  alleged  illegality  of  such 
ordinance.  The  validity  of  the  ordinance  can  only  be  tested  by 
appeal  from  a  fine  imposed  under  it.8  Where,  through  inadvert- 
ence, a  judgment  erroneously  includes  costs,  the  remedy  is  not  by 
injunction,  but  by  appeal.9 

§  377.  Who  may  appeal. — Where  a  defendant,  who  has  been 
enjoined,  transfers  his  interest  in  the  subject  matter  of  the  contro- 
versy, it  is  proper  that  an  appeal  be  taken  for,  and  on  behalf  of 
the  transferee,  in  the  name  of  the  original  defendant,10  and  in  the 
absence  of  any  showing  to  the  contrary,  an  appeal  will  be  presumed 
to  have  been  so  taken.11  Under  the  Missouri  statute,  giving  the 
right  of  appeal  "  to  every  person  aggrieved  by  any  final  judgment 
or  decision  of  any  Circuit  Court  in  any  civil  cause,"  the  sureties 
on  an  injunction  bond  have  the  right  to  prosecute  an  appeal  from 
a  judgment  rendered  on  a  bond  for  damages  against  the  principal 
alone.12    This  decision  was  founded  upon  the  rule  that  the  sureties 


Y.),  117;  Worman  v.  Frankish,  11 
N.  Y.  Supp.  351;  In  re  May,  49  L. 
T.   (N.  S.)   770." 

8.  Skakel  v.  Roche,  27  111.  App. 
423.  The  enforcement  of  the  ordi- 
nances of  New  Orleans  being  by  the 
Constitution  and  laws  of  the  State, 
vested  in  the  recorder's  court  of  that 
city,  the  validity  of  penal  ordinances 
must  be  tested  in  that  court,  and  on 
appeal  therefrom,  and  the  owner  of 
property  improved  and  used  as  a 
dairy  cannot  enjoin  the  enforcement 
by  authorized  judicial  process  of  an 
ordinance  requiring  all  dairies  to  be 
removed  from  within  certain  limits. 
Hottinger  v.  City  of  New  Orleans,  42 
La.  Ann.  629,  8  So.  575. 

9.  Nicklin  v.  Hobin,  13  Or.  406, 
10  Pac.  835. 

10.  Heilbron  v.  Land  &  Water 
Company,  96  Cal.  7,  30  Pac.  802.  An 
appeal  must  be  dismissed,  on  its  ap- 


pearing that  appellant  had  no  inter- 
est in  the  matter  of  the  order  ap- 
pealed from,  or  that  he  had  been  in- 
jured thereby.  Glenn  v.  Reid,  74  Md. 
238,  24  Atl.   155. 

11.  Malone  v.  Big  Flat  Gravel 
Min.  Co.,  93  Cal.  384,  28  Pac.  1063. 

12.  Nolan  v.  Johns,  108  Mo.  431. 
18  S.  W.  1107,  per  Macfarlane,  J.: 
"  The  use  of  the  word  '  person '  in- 
stead of  '  party,'  in  a  chapter  of  the 
statute  treating  exclusively  of  prac- 
tice in  civil  cases,  is  itself  suggestive 
that  others  than  those  technically 
parties  to  a  suit  and  judgment  should 
have  the  right  to  appeal.  Further, 
it  is  just  that  any  person  whose  in- 
terests are  injuriously  affected  and 
concluded  by  a  judgment  should  have 
the  right  to  a  review  by  the  Appel- 
late Court  of  the  proceedings  which 
resulted  in  such  judgment.  Farrar 
v.  Parker,  3  Allen   (Mass.),  556;  St. 


i77 


37 


§  378  Appeals. 

are  concluded  by  the  judgment  against  their  principal  if  it  is  free 
from  fraud  and  collusion.13  Where  an  injunction  order  restrains 
one  defendant  from  paying  money  to  another  defendant,  the  latter 
may  appeal,  though  not  in  terms  restrained  by  the  order  from  re- 
ceiving the  money,  for  in  effect  he  is  so  restrained.14  The  people 
may  appeal  in  a  proceeding  to  punish  a  party  for  contempt  for 
violating  an  injunction  decree  as  also  the  party  himself,  since  such 
a  proceeding,  though  brought  in  the  name  of  the  people,  is  a  civil 
remedy  partaking  of  the  nature  of  the  injunction  suit,  if  the  pur- 
pose of  it  is  to  afford  relief  between  the  parties,  and  not  merely 
to  uphold  the  authority  of  the  court.15 

§  378.  Injunction  order  operating  as  final  decree. — When  the 
relief  sought  is  purely  injunctive,  an  order  granting  the  injunction 
operates  as  a  final  decree,  and  is  appealable.16  If  the  only  relief 
prayed  for  is  an  injunction,  and  it  is  apparent  on  the  face  of  the 
bill  that  there  is  no  ground  for  such  ruling,  the  granting  of  the 
injunction  is  an  appealable  and  reversible  error.17  In  Illinois, 
when  the  only  relief  asked  by  the  bill  is  an  injunction,  the  dissolu- 
tion of  the  temporary  injunction  upon  motion  is  equivalent  to  the 
sustaining  of  a  demurrer  to  the  bill  for  want  of  equity,  and  is 


Louia   Zinc   Co.   v.    Hesselmeyer,    50  715.     In  Arnold  v.  Bright,  41  Mich. 

Mo.  180.  207,  it  was  held  that  an  appeal  would 

13.  Nolan  v.  Johns,   108  Mo.  431,  lie    from    a    preliminary    injunction 
18  S.  W.   1107.  order  as  from  a  final  decree  because 

See   as   to  general   rule,   Towle  v.  it  transferred  the   possession   of   de- 

Towle,   46   N.   H.   431;    Hotchkiss  v.  fendant's    land    to   a    receiver.      And 

Piatt,  7  Hun    (N.  Y.),  56;   aff'd  66  wherever  there  is  a  premature  adju- 

N.    Y.    620;    Methodist    Churches    v.  dication   of   the  merits   of  a   contro- 

Barker,  18  N.  Y.  463;   McAllister  v.  versy,  the  party  injured  may  appeal 

Clark,  86  111.  235.  from  it  as  from  a  final  order.    Barry 

14.  Landers  v.  Fisher,  24  Hun  (N.  v.    Briggs,    22    Mich.    201;    Lewis   v. 
Y.),  648.  Campau.    14    Mich.    458;    Taylor    v. 

15.  People    v.    Diedrieh,    141    111.  Sweet,  40  Mich.  736. 

665,  30  N.  E.  1038.  aff'g  37  111.  App.  17.  Sauls  v.  Freeman,  24  Fla.  209, 

604.     See,   also..    People   v.    Craft,    7  224,  4  So.  525;  Freeman  v.  Timanus, 

Paige    (N.  Y.),  324.  12  Fla.  393;   County  Com'rs  v.  Bry- 

16.  Toledo,  etc.,  R.  Co.  v.  Detroit,  son,    13    Fla.   281.     Where  a  bill    is 
■etc.,  R.   Co.,   61   Mich.  9,  27  N.  W.  filed  by  heirs  to  enjoin  the  enforee- 

578 


Appeals.  §  371) 

regarded  as  a  final  order  which  may  be  reviewed  on  error.18  And 
as  a  suit  for  an  injunction  only  is  not  to  recover  money  or  chattels 
it  is  not  affected  by  the  statute  limiting  appeals  to  a  certain 
amount,  and  an  appeal  lies  from  the  final  judgment  of  the  appellate 
court  in  such  a  suit  to  the  Supreme  Court,  without  regard  to  the 
amount  of  the  interests  involved.19  In  most  jurisdictions,  however, 
an  order  dissolving  an  interlocutory  injunction  is  not  regarded  as 
a  final  adjudication  of  the  case  which  is  reviewable  on  appeal.20 

§  379.  Appeals  in  Alabama. — In  Alabama  the  rule  of  chancery 
practice  relative  to  reinstatement  of  injunctions  and  appeals  from 
decrees  dissolving  an  injunction21  operates  only  in  cases  where  the 
injunction  has  been  dissolved  by  order  or  decree  of  the  court,  either 
express  or  direct  to  that  end,  or  if  its  own  indirect  operation  neces- 
sarily having  such  effect,  as  where  a  bill  upon  which  an  injunction 
is  issued,  is  dismissed.22  In  an  earlier  case  in  this  State  it  is 
decided  that  the  provision  of  the  Alabama  Code,  that  an  appeal 
may  be  taken  on  all  interlocutory  orders  "  sustaining  or  dissolving  " 
injunctions,  does  not  apply  to,  or  authorize  an  appeal  from  an  order 
discharging  an  injunction,  on  the  ground  that  it  has  been  irregu- 
larly granted,  such  order  having  been  improperly  made  on  a 
motion  to  dissolve ;  but  the  remedy  in  such  a  case  is  by  mandamus 
from  the  Supreme  Court,  commanding  the  chancellor  to  vacate  his 
order  discharging  the  injunction.23 

ment  of  a  decree  of  foreclosure  ren-  21,  45  S.  E.  710;  Hawkeye  Ins.  Co.  v. 

dered  against  an  administrator  on  a  Huston,    121    Iowa,    393,    96    N.    W. 

mortgage  made  by  their  ancestor,  and  895;    Rose  v.   Township   Board,    163 

such  bill  does  not  show  that  the  bill  Mo.  396,  63  S.  W.  698.     See  further 

of  foreclosure  did  not  state  facts  jus-  as  to  this,  §§  379-396  herein, 

tifying  the  said  decree,  it  is  error  to  21.  Rule    101,    Chancery    Practice 

enjoin  its  enforcement  which  will  be  Code,  p.  1224. 

ground  for  reversal,  by  the  Appellate  22.  Robertson       v.       Montgomery 

Court.    Merritt  v.  Daffin,  24  Fla.  320,  Baseball  Assn.,  140  Ala.  320,  37  So. 

4  So.  806.  241. 

18.  Prout  v.  Lomer,  79  111.  331;  23.  Ex  parte  Sayre,  95  Ala.  288, 
Shaw  v.  Hill,  67  111.  455;  Titus  v.  11  So.  378,  per  Coleman,  J.:  "The 
Mabee,  25  111.  257;  Weaver  v.  Poyer,  defendant,  after  answering,  made  a 
70  111.  567.  motion  to  dissolve  the  injunction  on 

19.  Chalcraft  v.  Louisville,  etc..  R.  the  following  grounds:  First,  that 
Co.,  113  111.  86.  See  Baber  v.  Pitts-  the  answer  denies  the  material  alle- 
burg,  etc.,  R.  Co..  93  111.  342.  gations  of  the  bill;   second,  that  the 

20.  Stubbs  v.  McConnell,  119  Ga.  bill    is   without    equity;    third,   that 

570 


§380 


Appeals. 


§  380.  In  Arizona ;  Arkansas. — In  Arizona,  under  the  statute 
of  1887,  appeals  in  injunction  suits  are  governed  by  the  same 
statutory  requirements  as  appeals  in  other  cases,  those  requirements 
being  that  in  all  cases  of  appeal  to  the  Supreme  Court  "  the  trial 
shall  be  on  a  statement  of  facts  or  on  a  bill  of  exceptions,  or  on  a 
special  verdict  or  on  an  error  in  law  either  assigned  or  apparent 


the  judge  of  the  city  court  was  with- 
out jurisdiction  to  make  an  order 
granting  the  injunction  at  the  time 
it  was  made.  The  chancellor,  being 
of  the  opinion  that  the  bill  contained 
equity,  and  that  the  denials  of  the 
answer  were  not  sufficient  to  dissolve 
the  injunction,  did  not  dissolve  the 
injunction  on  either  of  the  first  two 
grounds,  but  made  an  order  discharg- 
ing the  injunction  on  the  ground  that 
the  order  for  its  issuance,  having 
been  made  when  no  suit  was  ^pending, 
was  void.  This  proceeding  is  an  ap- 
plication by  the  complainants  for  a 
mandamus,  commanding  the  chancel- 
lor to  set  aside  the  order  discharging 
the  injunction.  The  only  question  is 
whether  the  petitioner's  remedy  is 
by  mandamus  or  appeal.  The  stat- 
ute provides  that  a  defendant  may 
move  to  dissolve  an  injunction  in  va- 
cation, before  the  chancellor.  The 
cause  was  regularly  submitted  to  be 
heard  in  vacation,  upon  the  motion  to 
dissolve  the  injunction,  and  it  was  at 
this  hearing  the  chancellor  errone- 
ously discharged  the  injunction.  The 
court  has  no  authority  to  hear  and 
determine,  in  vacation,  motions  which 
involve  mere  interlocutory  orders  and 
decrees,  except  as  authorized  by  stat- 
ute. The  statute  (Code,  §  3532),  pro- 
vides that  '  a  defendant  may  move 
to  dissolve  an  injunction  in  vacation 
before  the  chancellor  of  the  division 
in  which  the  bill  is  filed,  either  for 
want  of  equity,  or  on  the  coming  in 
of  the  answer,'  etc.,  and  Code,  §  3613, 


provides  that  '  an  appeal  lies  to  the 
Supreme  Court  on  all  interlocutory 
orders,  in  term  time  or  vacation,  sus- 
taining or  dissolving  injunctions,' 
etc.  Under  the  first  statute  cited,  the 
power  of  the  court  to  hear  motions  to 
dissolve  an  injunction  in  vacation,  is 
limited  to  cases  where  the  motion 
is  based  upon  a  '  want  of  equity,  or 
on  the  coming  in  of  the  answer.'  The 
decisions  of  this  court,  East  &  West 
R.  Co.  v.  East  Tennessee  R.  Co.,  75 
Ala.  275,  and  Jones  v.  Ewing,  56  Ala. 
362,  and  authorities  cited,  recognize  a 
marked  distinction  between  a  motion 
to  discharge  an  injunction  and  a  mo- 
tion to  dissolve  an  injunction.  They 
are  made  to  rest  on  entirely  different 
grounds,  and  in  fact,  the  filing  of  an 
answer,  and  a  motion  to  dissolve,  is 
held  a  waiver  of  the  right  to  move 
for  a  discharge  of  the  injunction.  We 
have  seen  that  the  statute  confers  no 
authority  upon  the  chancellor,  to  hear 
in  vacation,  a  motion  to  discharge  an 
injunction,  and  without  judicial  in- 
terpolation, this  court  cannot  hold 
that  such  power  was  rightfully  exer- 
cised. The  Right  of  appeal  from  an 
interlocutory  order,  made  in  vacation 
by  the  chancellor,  improperly  dis- 
charging an  injunction,  is  not  covered 
by  the  statute,  which  grants  appeals 
from  interlocutory  orders  made  in  va- 
cation. A  party  injuriously  affected 
by  such  erroneous  ruling,  has  no  rem- 
edy to  correct  the  error  except  by  the 
writ  of  mandamus.  A  different  prac- 
tice prevails  in  some  of  the  States. 


580 


Appeals. 


§381 


on  the  face  of  the  record."  u  Under  this  statutory  provision  the 
overruling  of  a  demurrer  to  the  complaint,  if  error,  need  not  be 
assigned,  being  fundamental  and  "  apparent  on  the  face  of  the 
record,"  but  all  errors  occurring  at  the  trial  of  the  injunction  suit 
in  the  court  below  must  be  incorporated  into  the  appeal  record  as 
in  other  cases.20  In  Arkansas  it  has  been  decided  that  the  dissolu- 
tion of  a  temporary  injunction  before  a  hearing  on  complaint  and 
answer  is  not  a  final  order  from  which  an  appeal  will  lie,  but  it 
seems  that  the  injunction  might  be  reinstated  in  a  proper  case  until 
it  should  be  properly  heard."" 

§381.  In   California,    Colorado,    Dakota.— In    California,    an 
appeal  may  be  taken  from  an  order  granting  or  dissolving  or  re- 


West  v.  Smith,  2  N.  J.  Eq.  309 
Woffle  v.  Vanderheyden,  8  Paige,  45 
Porker  v.  Williams,  4  Paige,  43$) 
Ijeflingwell  v.  Chave,  5  Bosw.  703 
Blair  v.  School  Disk,  31  Pa.  St.  274. 
The  defect  in  the  statute,  omitting  to 
provide  for  the  hearing  of  a  motion 
to  discharge  an  injunction  in  vaca- 
tion, as  is  provided  for  hearing  mo- 
tions to  dissolve  an  injunction,  may 
lead  to  serious  mischief,  but  the 
power  to  remedy  the  defect  rests  only 
with  the  Legislature.  A  decree  will 
be  here  rendered  that  a  peremptory 
writ  issue  commanding  the  chancel- 
lor to  set  aside  and  vacate  the  order 
discharging  the  injunction,  unless,  at 
the  first  term  of  the  chancery  court 
of  Colbert  county,  held  after  being  in- 
formed of  this  order,  the  order  dis- 
charging the  injunction,  mentioned  in 
the  petition,  is  set  aside  and  vacated, 
and  the  injunction  is  reinstated." 

24.  Rev.  Stat.  1887,  §  937. 

25.  Shute  v.  Keyser  (Ariz.),  29 
Pac.  38Gt  per  Kibbey,  J. :  "  Section 
2144  of  the  Code  of  Procedure  in  that 
the  principles,  practice  and  procedure 
governing  courts  of  equity  shall  gov- 
ern proceedings  in  injunctions  when 
the  same  are  not  iu  conflict  with  this 


act  or  other  law.  Upon  this  appel- 
lants argue  that  the  practice  and 
procedure  even  upon  appeal  and  in 
the  manner  of  perfecting  it  are  gov- 
erned by  the  rules  of  practice  of  the 
Federal  courts  and  the  High  Court  of 
Chancery  of  England.  We  cannot 
concur  in  that  view.  Section  2144 
simply  permits  the  supplying  of  any 
matter  of  practice  or  procedure  in 
injunction  suits,  provision  for  which 
has  not  been  made  by  our  code,  and 
that  in  supplying  such  omissions  we 
shall  be  governed  by  the  principles 
and  practice  generally  prevalent  in 
courts  of  equity  in  such  cases.  Our 
code  has  prescribed  the  practice  in 
all  cases  of  appeal  from  the  District 
Courts  to  this  court.  It  was  not  in- 
tended to  prescribe  a  different  prac- 
tice upon  appeal  in  injunction  cases. 
.  .  .  There  being  no  statement  of 
facts  and  no  bill  of  exceptions,  the 
only  record  presented  for  our  con- 
sideration is  the  judgment  roll.  The 
demurrer  to  the  complaint  was  over- 
ruled. If  this  be  error  it  is  appar- 
ent upon  the  record  and  need  not  here 
be  assigned." 

26.  Citizens    Bank    v.    Walker,    26 
Ark.  468. 


581 


§  382  Appeals. 

fusing  to  grant  or  dissolve  an  injunction.27  And  the  party  injured 
or  aggrieved  by  an  order  modifying  an  injunction  has  the  right 
of  an  appeal.  Thus  it  was  so  held  where  an  order  struck  out  all 
that  portion  of  a  preliminary  injunction  mandatory  in  its  char- 
acter.28 But  the  discretion  of  the  court  of  original  jurisdiction 
will  be  disturbed  on  appeal  only  where  it  has  been  abused,  and 
where  it  has  been  exercised  in  refusing  to  dissolve  an  injunction, 
it  will  not  be  interfered  with  merely  on  the  ground  that  some  of  the 
allegations  of  the  complaint  are  on  information  and  belief.29  And 
even  if  most  of  the  facts  stated  in  the  complaint  and  affidavits  of 
plaintiff  are  denied  in  the  answer  and  affidavits  of  defendant,  an 
order  granting  an  injunction  will  not  be  reversed  on  appeal  unless 
it  appears  there  was  an  abuse  of  discretion.30  An  appeal  from  an 
order  dissolving  a  preliminary  injunction  must  be  taken  within 
sixty  days  from  the  date  of  the  entry  of  the  order.31  In  Colorado 
an  appeal  does  not  lie  from  interlocutory  orders,  but  only  from 
final  judgments.32  In  Dakota  an  appeal  could  be  taken  to  the 
Supreme  Court  from  orders  which  grant,  refuse,  modify  or  dis- 
solve an  injunction.33 

§  382.  In  Delaware,  District  of  Columbia  and  Florida. — In 
Delaware,  the  constitution  of  1792  gave  an  appeal  "  from  inter- 
locutory or  final  orders  or  decrees  of  the  chancellor,"  and  in  1817 
it  was  decided  by  the  Court  of  Errors  and  Appeals  that  an  appeal 

27.  Code  Civ.  Pro.,  §  939;  New-  White  v.  Nunan,  60  Cal.  406;  De- 
man  v.  Moretti,  146  Cal.  31,  79  Pac.  Godey  v.  Godey,  39  Cal.  167;  Mc- 
512.  Creery  v.  Brown,  42  Cal.  457." 

28.  Wolf  v.  Board  of  Supervisors,  30.  Coolot  v.  Central  Pac.  R.  Co., 
143  Cal.  333,  76  Pac.  1108.  52  Cal.  65. 

29.  Hiller  v.  Collins,  63  Cal.  235,  31.  Barham  v.  Hostetter,  67  Cal. 
per  Curiam:  "The  facts  alleged  in  272,  7  Pac.  689;  McCourtney  v.  For- 
the  complaint  and  affidavits  are  com-  tune,  42  Cal.  387. 

plicated,    and    though    some    of    the  32.  Armor  v.  Lyon,  1  Col.  7;  Lufc- 

facts   stated  by   plaintiff  are  denied  terell  v.  Swisher,  5  Col.  54. 

by  defendants,  yet  we  cannot  say  the  33.  Code  Civ.  Pro.   (1887),  §  5236, 

refusal     to    dissolve    the    injunction  subdiv.  3.     This  is  the  rule  in  South 

under  the  circumstances  appearing  in  Dakota.     Huron   Waterworks  Co.  v. 

the  case  was  an  abuse  of  discretion.  Huron  City,  3  S.  D.  610,  54  N.  W. 

Coolot  v.  Central  Pac.  R.  Co.,  52  Cal.  652. 
65;   Parrott  v.   Floyd,  54  Cal.  534; 

582 


Appeals.  §  883 

would  lie  to  that  court  from  an  interlocutory  injunction  order  of 
the  chancellor  which  went  further  than  to  preserve  matters  in  statu 
quo  pending  the  suit.34  In  the  District  of  Columbia  an  order  con- 
tinuing a  temporary  restraining  order  in  force  is  held  to  have  all 
the  consequences  of  an  injunction  and  is  appealable.35  But  in  an 
pearlier  case  it  is  decided  that  an  appeal  can  not  be  taken  from  an 
order  dissolving  a  temporary  restraining  order.36  In  Florida  it  is 
decided  that  where  a  decree  dissolves  an  injunction  and  dismisses 
the  bill  an  appeal  will  not  lie  solely  from  the  part  of  the  decree 
which  dissolves  the  injunction.37  And  where  the  hearing  of  an 
application  for  an  injunction  is  upon  bill,  answer,  and  affidavits 
in  support  of  the  bill,  and  the  answer  fails  to  explain  as  fully  as  it 
should  a  material  point  in  the  case,  and  the  action  of  the  chancellor 
in  granting  the  injunction  is,  as  to  this  point,  suj)ported  by  the  bill 
and  the  affidavits,  though  controverted  by  the  answer  to  the  extent 
that  the  latter  goes,  it  cannot  be  said  that  he  chancellor  has  abused 
his  discretion  or  committed  any  error  justifying  the  interposition 
of  the  appellate  court.38 

§  383.  In  Georgia. — In  Georgia  it  is  decided  that  an  order  dis- 
solving, vacating,  or  modifying  an  interlocutory  injunction,  and 

34.  Tatem  v.  Gilpin,  1  Del.  Ch.  13.  complainant  to  the  writ,  and  there 
In  this  case  the  Court  of  Appeals  was  a  reasonable  doubt  whether  the 
ordered  the  chancellor's  injunction  to  equity  of  the  bill  was  fully  negatived 
be  modified,  and  prescribed  the  form  by  the  answer,  it  was  not  an  abuse 
of  injunction  to  be  issued  by  him  and  of  discretion  for  the  chancellor  to 
"remanded  the  record  to  his  court  for  grant  the  injunction;  and  he  added: 
that  purpose.  "  Independent,  however,  of  what  has 

35.  McFarland  v.  Washington,  been  said  above,  and  treating  the  an- 
Alexandria  &  M.  V.  It.  Co.,  18  App.  ewer  as  fully  meeting  the  case  made 
D.  C.  456.  by  the  bill,  we  are  still  unable  to  see 

36.  Hurst  v.  Saunders,  5  App.  D.  that  the  action  of  the  chancellor  in 
C.  66.  granting  the  injunction  can,  upon  the 

37.  Burnham  v.  Driggers,  44  Fla.  principles  controlling  Appellate 
168,  32  So.  796.  Courts  in  such  cases,  be  held  to  be 

38.  In  McKinne  v.  Dickenson,  24  against  the  weight  of  evidence  under 
Fla.  366,  5  So.  34,  Raney,  J.,  was  of  the  second  section  of  the  Act  of  1861, 
the  opinion  that  where,  on  a  motion  sec.   20.    p.    158,   McC.'s   Dig.;    Sulli 
for  an  injunction  on  bill  and  answer,  van  v.  Moreno,  19  Fla.  200;  Yonge  v. 
the  case  made  by  the  bill  entitled  the  McCormick,  6   Fla.  368.    .    .    .    Our 

583 


§383 


Appeals. 


the  appointment  of  a  receiver  is  not  reviewable  by  a  "  past "  writ 
of  error.39  Section  3220  of  the  Georgia  Code  of  1882,  providing 
that  "  the  granting  and  continuing  of  injunctions  must  always 
rest  in  the  sound  discretion  of  the  judge  according  to  the  circum- 
stances of  each  case,"  is  declaratory  of  the  almost  universal  rule 
which  is  observed  in  courts  of  equity,40  and  the  rule  is  also  equally 
general  that  appellate  courts  will  not  interfere  with  such  dis- 
cretion, and  will  not  reverse  an  order  of  the  inferior  court,  whether 
granting  or  refusing  an  injunction,  unless  that  in  making  the 
order  there  was  an  abuse  of  discretion  which  amounted  to  an  error 
of  law.  The  application  of  this  rule  was  well  illustrated  in  1893, 
at  the  July  term  of  the  Supreme  Court  of  Georgia,  when  that 
court  first  refused  to  disturb  an  order  of  the  superior  court  grant- 
ing an  injunction  where  there  was  equity  in  the  petition  and  the 
evidence  was  conflicting;41  and  a  week  later  declined  also  to  disturb 
an  order  of  the  superior  court  refusing  an  injunction,  and  requir- 
ing the  conflict  of  facts  to  be  settled  by  the  jury  at  the  final  hear- 
ing.42   If  a  court  of  last  resort  were  to  undertake  to  reverse  orders 


conclusion  as  to  the  action  of  the 
chancellor  is  that  there  is  no  error 
in  it  authorizing  our  interposition. 
His  action  should  not  be  disturbed 
by  us  unless  an  abuse  of  a  sound  dis- 
cretion is  shown."  To  the  same  ef- 
fect is  Shivery  v.  Streeper,  24  Fla. 
103,  3  So.  865. 

39.  Stubbs  v.  McConnell,  110  Ga. 
21,  45  S.  E.  710.  Citing  Bacon  v. 
Capital  City  Bank,  105  Ga.  700,  31 
S.  E.  588;  Smith  v.  Willis,  107  Ga. 
702,  33  S.  E.  667. 

40.  §§   117-121,  ante. 

41.  Jones  v.  Rountree,  92  Ga. 
571,  17  S.  E.  951.  In  Pen- 
dleton v.  Johnson,  85  Ga.  840, 
11  S.  E.  144,  the  Appellate  Court 
held  there  was  no  abuse  of  discretion 
in  granting  the  injunction.  In  Rub- 
sam  v.  Cobb,  84  Ga.  552,  11  S.  E.  138, 
it  was  decided  on  appeal  that  there 
had  been  no  error  below  in  granting 


an  injunction  in  favor  of  plaintiff  on 
his  giving  a  bond  for  damages,  and  in 
favor  of  defendant  without  any  bond 
from  him.  See,  also,  Mason  v.  Kirk- 
patrick,  77  Ga.  492. 

42.  Thrasher  v.  Holmes,  92  Ga. 
571,  17  S.  E.  899.  In  the  following 
cases  the  Appellate  Court  held  there 
was  no  abuse  of  discretion  in  refus- 
ing to  grant  an  interlocutory  injunc- 
tion: Board  of  Education  v.  Mc- 
Ree,  88  Ga.  214,  14  S.  E.  200;  Hill  v. 
Macon  &  B.  R.  Co.,  86  Ga.  574,  12 
S.  E.  939 ;  Clay  v.  Clay,  '  86 
Ga.  359,  12  S.  E.  1064;  Gib 
son  v.  Cohen,  85  Ga.  850,  11 
S.  E.  141;  East  Tenn.  R.  Cb.  v. 
Sellers,  85  Ga.  853,  11  S.  E.  543; 
Hill  v.  Staples,  85  Ga.  863,  11 
S.  E.  967;  Bentley  v.  Crenshaw,  85 
Ga.  871,  11  S.  E.  650;  Allen  v.  Eth- 
eredge,  84  Ga.  550,  11  S.  E.  136; 
Mathews  v.  Williams,  84  Ga.  536,  11 


5S4 


Appeals. 


§384 


granting  or  refusing  to  grant  an  injunction,  on  the  ground  that 
the  facts  were  against  the  judgment  of  the  inferior  court,  it  would 
be  assuming  an  original  jurisdiction  over  injunctions  not  conferred 
upon  it  or  belonging  to  it.43  Upon  the  preliminary  hearing  of  a  bill 
for  injunction  upon  ex  parte  affidavits  merely,  nice  and  doubtful 
questions  are  properly  left  undetermined,  and  will  not  be  reviewed 
upon  appeal.44 

§  384.  In  Illinois. — In  the  earlier  cases  in  Illinois  it  is  decided 
that  no  appeal  lies  from  an  interlocutory  decree  dissolving  a  tem- 
porary injunction;40  nor  from  an  order  in  vacation  denying  a 
motion  to  dissolve  an  injunction.46  The  act  of  June  14,  1887, 
allowing  appeals  from  interlocutory  orders  applies  only  to  orders 
entered  in  term  time  and  not  to  orders  entered  in  vacation  and 
therefore  an  appeal  will  not  lie  from  an  order  of  a  Circuit  Court 


S.  E.  447;  Yarborough  v.  Miller,  84 
Ga.  546,  11  S.  E.  450.  in  Rome  Street 
R.  Co.  v.  Van  Dyke,  92  Ga.  570.  17 
S.  E.  906  the  controlling  question 
was  as  to  the  dedication  and  accept- 
ance of  a  certain  bridge,  and  the  evi- 
dence on  this  subject  being  conflicting 
but  sufficient  to  warrant  the  judge  in 
finding  there  had  been  such  dedica- 
tion and  acceptance,  and  it  not  ap- 
pearing that  plaintiff  would  be  in- 
jured by  allowing  defendant  to  use 
the  bridge  until  the  issue  could  be 
tried  by  a  jury,  it  was  held  on 
appeal  that  there  was  no  error  in 
denying  the  injunction.  See,  also, 
Harrell  v.  Griffin,  92  Ga.  571.  17  S. 
E.  927.  In  Brunswick  &  W.  R.  Co.  v. 
Waycross  City.  88  Ga.  68,  13  S.  E. 
835  the  city  prevented  the  company 
from  crossing  the  main  thoroughfare 
of  the  city,  and  the  court  refused  the 
injunction  asked  for  by  the  company 
and  granted  the  one  asked  for  by  the 
city,  and  the  Supreme  Court  refused 
to  interfere  as  it  was  not  clear  that 


the   company   had   not   dedicated  the 
locus  in  dispute  for  a  public  street. 

43.  Bonaud  v.  Genesi,  42  Ga.  639, 
per  McCay,  J. 

44.  Leake  v.  Smith  76  Ga.  524. 

45.  Keenan  v.  Williams,  45  111. 
App.  530;  Hanford  v.  Blessing,  80  111. 
188;  Marble  v.  Bonhotel,  35  111.  240. 

46.  School  Directors  v.  Wright,  43 
111.  App.  270;  Greve  v.  Goodson,  142 
111.  355,  31  N.  E.  677;  Lucan  v. 
Cadwallader.  114  111.  285,  7  N.  E. 
286.  And  the  fact  that  the  only 
relief  sought  is  an  injunction  gives 
no  additional  right  to  an  appeal  when 
the  order  is  made  in  vacation,  as  such 
an  order  is  not  a  judgment  or  decree 
of  the  court.  Greve  v.  Goodson, 
supra.  In  Gardt  v.  Brown,  113  111. 
475,  the  order  was  that  the  tem- 
porary injunction  be  dissolved,  and 
further  that  if  the  complainant  de- 
sired to  take  an  appeal  the  bill  be 
dismissed;  it  was  held  that  by  ap- 
pealing from  the  order  the  complain- 
ant elected  to  have  his  bill  dismissed 


585 


'§  oSi  AprEALS. 

judge  granting  or  refusing  an  injunction  in  vacation.47    And  under 
this  act  an  appeal  from  an  interlocutory  order  granting  an  injunc- 
tion can  only  be  taken  while  the  order  remains  in  force.48     It  is 
decided  in  this  State  that  "  an  order  dissolving  an  injunction  is 
interlocutory,  and,  where  the  only  relief  sought  by  a  bill  is  an 
injunction,  the  complainant  upon  the  dissolution  of  the  injunction, 
which  is  in  effect  a  final  order  denying  all  relief,  may  dismiss  his 
bill  and  appeal,  or  take  out  a  writ  of  error."  49    And  it  is  said  that 
it  is  not  questioned  that  the  appellate  court  has  jurisdiction  to 
entertain  appeals  from  orders  granting  injunctions  and  that  the 
denial  of  a  motion  to  dissolve  an  injunction  is  the  same  in  effect 
as  an  order  granting  an  injunction  and  that  an  appeal  will  lie.50 
And  in  a  recent  case  in  this  State  it  is  decided  that  the  Supreme 
Court  is  not  bound  by  the  findings  of  trial  court  nor  by  the  affirm- 
ance of  the  judgment  by  the  appellate  court  as  to  the  facts  in  a 
civil  contempt  proceeding  but  that  the  same  are  open  for  deter- 
mination by  the  Supreme  Court.    It  is  declared,  however,  that  the 
latter  court  will  not  reverse  because  the  finding  is  not  supported  by 
the  evidence  unless  the  finding  is  against  the  clear  preponderance 
of  the  testimony.51    Where  it  is  sought  to  restrain  an  obstruction 
to  a  roadway  which 'is  claimed  to  be  a  perpetual  easement  appur- 
tenant to  the  land  of  complainant  and  defendant,  a  decree  awarding 
the  injunction  involves  a  freehold  within  the  meaning  of  the  statute 
Telating  to  appeals,  and  an  appeal  lies  directly  to  the  Supreme 
Court  of  the  State.52    And  within  the  meaning  of  the  same  statute 
a  bill  to  enjoin  a  nuisance  to  complainant's  farm  involves  a  free- 
hold, and  an  appeal  from  a  decree  dismissing  the  bill  lies  directly 
from  the  Circuit  to  the  Supreme  Court.53 

and  could  not  urge  the  dismissal  as       567;  Brown  v.  American  Stone  P.  B. 
error.  M.  Co.,  54  111.  App.  647. 

47.  Hawkins  v.  Burnell,  191  111.  50.  Hately  v.  Myers,  96  111.  App. 
389,  61  N.  E.  68,  reo'g  92  111.  App.       217. 

459.  51.  Hake  v.   People,  230  111.    174, 

48.  Sharpies    v.    Baker,    100    111.       82  N.  E.  561. 

App.  108.  52.  Turpin     v.     Dennis,     139     111. 

49.  Williams  v.  Chicago  Exhibi-  274.  See,  also,  Highway  Com'rs  v. 
tion  Co.,  188  111.  19,  58  N.  E.  611.  Chicago,  etc.,  R.  Co.,  34  111.  App.  32. 
Per  Magruder,  J.,  citing  Titus  v.  53.  Dierks  v.  Highway  Com'rs,  142 
Mabee,  25  111.  257;   Prout  v.  Lower,  111.  197,  31  N.  E.  496. 

79  111.  331;  Weaver  v.  Poyer,  70  111. 

586 


Appeals.  §§  385,  385a 

§  385.  In  Indiana. — The  Indiana  doctrine  is  that  as  it  is  against 
the  policy  of  the  law  to  permit  appeals  from  interlocutory  orders, 
such  appeals  will  not  be  permitted  unless  expressly  authorized  by 
statute ;  and  therefore  an  appeal  does  not  lie  from  an  interlocutory 
order  staying  further  proceedings  in  a  cause  until  another  pending 
cause  shall  be  decided.54  And  an  interlocutory  order  denying  a 
temporary  injunction  and  vacating  a  temporary  restraining  order 
theretofore  issued  is  not  appealable.55  It  is  not,  however,  always 
easy  to  decide  whether  a  judgment  should  be  treated  as  interlocu- 
tory or  final.  Thus,  in  an  action  to  restrain  the  enforcement  of  a 
city  ordinance,  the  case  was  submitted  upon  the  complaint,  and 
it  was  "  ordered  and  adjudged  that  the  injunction  as  prayed  for 
in  plaintiff's  amended  complaint  be  granted  and  continued  until 
the  validity  of  the  ordinance  in  question  shall  have  been  finally 
determined."  This  judgment  was  held  to  be  appealable  because 
it  was  not  interlocutory  but  a  final  termination  of  the  suit.56  An 
unsuccessful  motion  to  dissolve  an  injunction  made  in  the  lower 
court,  while  an  appeal  from  the  order  granting  it  is  pending  in  the 
Supreme  Court,  is  not  sufficient  to  authorize  the  dismissal  of  the 
appeal,  when  it  does  not  appear  that  the  appellant  has  taken  a 
position  in  the  lower  court  inconsistent  with  the  one  he  occupies  on 
appeal,  or  that  the  position  of  the  parties  has  been  changed  since 
the  appeal  was  taken.57  It  seems  that  in  Indiana,  an  appeal  may 
be  taken  from  an  order  denying  a  motion  to  dissolve  an  injunction, 
if  taken  before  a  perpetual  injunction  is  granted,  but  not  if  taken 
after,  for  it  would  be  idle  to  reverse  such  an  order  after  a  trial  of 
the  action  and  a  decree  for  a  perpetual  injunction.  The  appeal 
would  then  lie  from  the  final  decree.58 

§  385a.  In  Iowa;  Kansas. — In  Iowa  it  is  decided  that  a  ruling 
on  a  motion  to  dissolve  a  temporary  injunction  is  not  an  adjudica- 

54.  Taylor  v.  Jay  County  Com'rs,  Co.  v.  St.  Joseph,  S.  B.  &  S.  R.  Co., 
120  Ind.  121 ;  see  Western  U.  Teleg.       155  Ind.  27,  57  N.  E.  530. 

Co.  v.  Locke,  107  Ind.  9,  7  N.  E.  579.  56.  Davis  v.  Fasig,   128  Ind.  271, 

The    statute    authorizes    an    appeal  27  N.  E.  726. 

from     certain     interlocutory     orders  57.  Davis  v.  Fasigj   128  Ind'.  271, 

enumerated  in  section  646  of  the  In-  27  N.  E.  726. 

diana  revised  statutes  of  1881.  58.  Clay  County  Com'rg  v.  Markle, 

55.  Terre  Haute  &  Logansport  Ry.  46  Ind.  96. 

587 


§  385b  Appeals. 

tion  on  thie  merits  which  may  be  reviewed  on  appeal  except  pos- 
sibly on  a  proper  assignment  of  errors.59  And  in  an  action  for 
damages  and  to  abate  a  nuisance  an  order  continuing  the  injunc- 
tion for  the  purpose  of  enabling  the  defendant  to  abate  the 
nuisance  is  not  appealable.60  In  Kansas  it  would  seem  from  the 
earlier  cases  that  while  the  granting  or  dissolving  of  an  injunction 
rests  in  the  sound  discretion  of  the  court  of  original  jurisdiction, 
yet  this  is  a  legal  discretion  which  may  be  subject  to  review  on 
appeal.61  A  later  case  in  this  State  seems,  however,  to  support  the 
rule  that  an  order  granting  a  temporary  injunction  until  a  date 
set  for  a  hearing  is  an  interlocutory  order  from  which  an  appeal 
will  not  lie.62 

§  385b.  In  Kentucky. — In  Kentucky  an  order  made  on  a 
motion  to  continue  an  injunction  in  force  pending  an  appeal, 
whether  it  be  one  granting  or  refusing  the  relief  is  held  to  be  sub- 
ject to  revision  by  the  Court  of  Appeals  on  application  within 
twenty  days.63  In  this  State  it  is  provided  by  statute  that  appeals 
may  be  taken  except  "  from  a  judgment  for  the  recovery  of  money 
or  personal  property,  if  the  value  in  controversy  be  less  than 
$200."  64  And  it  is  decided  that  an  appeal  will  not  lie  from  an 
order  granting  an  injunction  where  the  amount  involved  is  not 
sufficient  to  give  the  court  jurisdiction.65  It  is,  however,  decided 
that  an  appeal  from  a  judgment  refusing  to  enjoin  the  collection 
of  a  judgment  and  to  vacate  it  is  not  an  appeal  from  a  judgment 

59.  Hawkeye  Ins.  Co.  v.  Huston,  be  so  great  that  this  court  could  say 
121  Iowa,  393,  96  N.  W.  895.  that  the  court  below  had  abused  its 

60.  Suddeth  v.  City  of  Boone,  121  discretion."  See,  also;  Olmstead  v. 
Iowa,  258,  96  N.  W.  853.  Koester,  14  Kan.  463.  ' 

61.  Wood  v.  Millspaugh,  15  Kan.  62.  Wagstaff  v.  Wagstaff,  67  Kan. 
14,  per  Valentine,  J. :     "  Even  if  the  832,  72  Pac.  780. 

reasons  in  favor  of  sustaining  a  tern-  63.  Davis  v.  Connolly,  104  Ky.  87, 

porary  injunction  should  slightly  pre-  46  S.  W.  679. 

ponderate  over  those  against  it,  still  64.  Ky.  Statutes,  §  950:   Shackel- 

that  would  not  be  sufficient  to  author-  ford,  Clerk,  v.  Phillips,  112  Ky.  563, 

ize  this  court  to  reverse  an  order  of  66  S.  W.  419,  68  S.  W.  441. 

the   District    Court    or    of   a   judge  65.  Bourne  v.   Beck,   22  Ky.   Law 

thereof  vacating  a  temporary  injunc-  Rep.  792,  58  S.  W.  690. 

tion,  unless  the  preponderance  should 

588 


Appeals.  §  386 

for  the  recovery  of  money  or  personal  properly  within  the  meaning 
of  the  statute,  making  the  right  of  appeal  dependent  on  the 
amount.66  In  another  case  in  Kentucky  it  is  decided  that  as  a 
judgment  restraining  the  collection  of  a  fee  bill  is  not  a  judgment 
for  the  recovery  of  money  or  property,  an  appeal  lies  therefrom, 
though  the  value  in  controversy  is  less  than  two  hundred  dollars.67 
An  order  granting  a  temporary  injunction  until  a  date  set  for 
hearing  is  held  to  be  merely  an  interlocutory  order  which  does  not 
determine  finally  any  rights  of  the  parties  and  is  not  appealable.68 

§  386.  In  Louisiana. — In  Louisiana,  an  order  dissolving  an  in- 
junction on  the  defendant's  bond,  is  appealable  if  it  causes  irre- 
parable injury  to  the  plaintiff,  but  otherwise,  it  is  not  appealable  f9 
and  an  order  refusing  to  dissolve  an  injunction  on  the  defendant's 
bond,  is  appealable.70  An  order  refusing  to  dissolve  an  injunction 
on  the  face  of  the  papers,  is  not  appealable  ;71  such  an  order,  being 
interlocutory,  and  of  the  nature  of  an  exception  of  no  cause  of 
action,  can  occasion  no  irreparable  injury,  and  is  not  appealable 
prior  to  a  judgment  on  the  merits.72  And  where  the  judge  orders 
that  writs  of  injunction  be  dissolved  and  that  the  property  affected 
thereby  be  released  upon  the  giving  of  a  bond  by  the  defendant 
covering  the  alleged  damages  and  value,  an  appeal  will  not  lie.73 
An  order,  dissolving  an  injunction  without  notice  to  complainant, 
is  appealable,  and  will  be  reversed.74  A  party  is  entitled  to  a  notice 
of  decree  dissolving  an  injunction,  rendered  on  an  ex  parte  hearing 
without  notice;  and  the  time  for  an  appeal  from  such  a  decree 

66.  Cincinnati,  Portsmouth,  B.  S.  70.  Lattier  v.  Abney,  43  La.  Ann. 
&  P.  P.  Co.  v.  Malone  &  Co.,  29  Ky.        1016,  10  So.  360. 

Law  Rep.  44,  92  S.  W.  306.  71.  Cottam  v.  Currie,  42  La.  Ann. 

67.  Shackelford,  Clerk,  v.  Phillips,       875,  8  So.  600. 

112  Ky.  563,  66  S.  W.  419,  68  S.  W.  72.  Hunt  v.  Brusle,   38  La.  Ann. 

441.  356;    Huntington    v.    Sheriff,    7    La. 

68.  Treadway    v.    Daniel,    22    Ky.       Ann.  205. 

Law  Rep.  1275,  60  S.  W.  412.  73.  State  v.   Bruot,    112  La.  425, 

69.  Levine  v.  Mitchell,  34  La.  Ann.  36  So.  481.     See,  also,  State  v.  Som- 
1181;  State  v.  Debaillon,  37  La.  Ann.  merville,  113  La.  558,  37  So.  476. 
110;   Osgood  v.   Black,   33  La.   Ann.  74.  Marin  v.  Thierry,  29  La.  Ann. 
493;   Puckette  v.  Judge.  39  La.  Ann.  362. 

901,  2  So.  801. 

589 


§§  387,  387a,  387b  Appeals. 

runs  from  the  notice.75  Where  an  injunction  is  dissolved  without 
notice  to  the  complainant,  he  is  ordinarily  entitled  to  a  suspensive 
appeal  from  the  order  or  decree  of  dissolution,  and  the  lower  court 
may  be  compelled,  by  mandamus,  to  allow  such  appeal.76  In  the 
absence  of  abuse  or  denial  of  justice  the  act  of  a  judge  in  raising 
the  amount  of  a  bond  for  injunction  will  not  be  interfered  with 
on  appeal.77 

§  387.  In  Maryland. — In  Maryland  it  was  provided  by  the 
Code  of  Public  General  Laws78  that  whenever  any  court  having 
equity  jurisdiction  shall  refuse  to  grant  an  injunction  according 
to  the  prayer  of  the  bill,  an  appeal  may  be  taken  from  such  re- 
fusal. This  section  had  its  origin  in  the  act  of  1832,79  which 
authorized  an  application  to  the  judges  of  the  Court  of  Appeals, 
or  one  of  them,  when  an  injunction  should  have  been  refused  by 
the  County  Court.80  And  an  appeal  lies  under  the  Code81  from  an 
order  whose  practical  effect  is  to  refuse  to  dissolve  an  injunction.82 

§  387a.  In  Michigan. — In  Michigan  no  appeal  lies  from  an 
order  modifying  a  preliminary  injunction,  nor  from  an  order  refus- 
ing a  motion  to  set  the  order  of  modification  aside.82  And  an  order 
denying  a  motion  to  dissolve  a  temporary  injunction  is  not  appeal- 
able, it  not  being  a  final  decree.84 

§  387b.  In  Minnesota. — In  Minnesota,  an  appeal  lies  to  the 
Supreme  Court  from  an  order  of  a  District  Court  granting  or  dis- 
solving a  temporary  injunction,  but  such  an  order  will  not  be 
reversed  if  it  appears  to  have  been  fairly  within  the  discretion  of 

75.  State  v.  District  Judge,  37  80.  Chesapeake  &  Potomac  Teleph. 
La.  Ann.   118.  Co.  v.  Baltimore,  89  Md.  689,  43  Atl. 

76.  Pike    v.    Bates,    34    La.    Ann.  784,  44  Atl.   1033. 
391;  State  v.  District  Judge,  etc.,  37  81.  Art.  v,  §  25. 

La.  Ann.   118;    State  v.  Judge,  etc.,  82.  Connor  v.  Groh,  90  Md.   674, 

28  La.  Ann.  889.  45  Atl.  1024. 

77.  Bell  v.  Riggs,  37  La.  Ann.  813.  83.  Simmons   v.   Board  of   Super- 

78.  §  29,  art.  5.  '  visors,  144  Mich.  591,  108  N.  W.  282. 

79.  Ch.  197.  84.  United    States    Heater   Co.    v. 

590 


Appeals.  §§  387c,  388 

the  lower  court.85  And  an  order  for  a  temporary  injunction  granted 
upon  a  full  hearing  upon  the  pleadings  and  affidavits  of  the  re- 
spective parties,  and  not  issued  ex  parte,  is  appealable.86 

§  387c.  In  Missouri.— The  rule  established  by  the  earlier  cases 
in  Missouri  is  that  an  appeal  does  not  lie  from  the  mere  refusal  to 
grant  a  temporary  injunction  or  from  an  order  dissolving  such  an  in- 
junction.87 But  in  a  recent  case  it  is  decided  that  under  the  statute  of 
1899  an  interlocutory  order  dissolving  an  injunction  is  appealable.8* 
And  the  dismissal  of  plaintiff's  petition,  in  addition  to  refusing 
him  the  injunction,  is  a  final  disposition  of  the  case  which  entitles 
him  to  an  appeal.89  And  an  appeal  will  lie  from  an  assessment 
of  damages  on  an  injunction  bond  after  the  dissolution  of  a  tem- 
porary injunction,  though  the  cause  be  still  pending.90 

§  388.  In  Montana. — In  Montana  it  is  declared  that  it  is  a 
general  rule  that  an  appeal  will  not  lie  from  an  order  refusing  to 
vacate,  dissolve  or  modify  a  prior  judgment  or  order  which  is  itself 
appealable.91  In  this  State  a  Code  provision  for  an  appeal  from 
an  order  granting  or  dissolving,  or  refusing  to  grant  or  dissolve,  an 
injunction  is  construed  as  not  authorizing  an  appeal  from  an  order 
granting  or  refusing  a  temporary  restraining  order  pending  the 
hearing  of  an  order  to  show  cause  why  an  injunction  should  not 
issue.92  But  in  an  earlier  case  it  is  held  that  an  order  vacating  a 
temporary  restraining  order  is  an  order  dissolving  an  injunction 

Iron  Moulders'  Union,  129  Mich.  354,  which  an  appeal  will  lie.    Richards  v. 

88  N.  W.  889,  citing  Wing  v.  Warner,  Johnson,  34  Mo.  App.  83. 

2  Doug.    (Mich.)    288.  88.  Powell    v.    Canaday,    95    Mo. 

85.  Myers  v.   Duluth  Transfer  R.  App.  713,  69  S.  W.  686,  decided  under 
Co.,  53  Minn.  335,  55  N.  W.  140.  Mo.  Rev.  St.  1899,  §  806. 

86.  Fuller    v.    Schutz,    88    Minn.  89.  Kansas  City  R.  Co.  v.  Kansas 
372,  93  N.  W.  118.                                      City,  29  Mo.  App.  89. 

87.  Johnson  v.  Board,  etc.,  65  Mo.  90.  Witthaus  v.   Washington  Sav. 
47;   Harrison  v.  Rush,   15  Mo.   175;        Bank,   18  Mo.  App.   181. 

Tanner  v.  Irwin,  1  Mo.  65.    An  order  91.  Butte  Consol.  M.  Co.  v.  Frank, 

merely    dissolving    a    temporary    in-  24  Mont.  506,  62  Pac.  922. 

junction  and  awarding  costs,  without  92.  Maloney  v.  King,  25  Mont.  256, 

making    further    disposition    of    the  64  Pac.  668,  construing  Code  of  Civ. 

cause,  is  not  a  final  judgment  from  Proc,  §    1722,   as  amended  Feb.  28, 

591 


§§  388a,  389  Appeals. 

from  which  an  appeal  lies.93  And  it  has  also  been  held  that  an 
appeal  could  properly  be  taken  from  an  order  modifying  or  par- 
tially dissolving  an  injunction,94  and  that  an  appeal  lies  also  from 
an  order  made  by  a  judge  in  chambers.90  And  on  appeal  from  these 
provisional  orders,  the  question  before  the  appellate  court  is, 
whether  or  not  there  was  an  abuse  of  discretion  by  the  court  below 
in  granting  or  refusing  the  injunction.96  Where  an  order  of  the 
District  Court,  dissolving  an  execution  sale,  has  been  affirmed  on 
appeal,  an  order  of  such  court  granting  an  injunction  to  restrain 
the  judgment  creditor  from  disposing  of  property  purchased  at 
such  sale  will  also  be  affirmed.97 

§  388a.  In  Nebraska. — In  Nebraska  it  is  decided  that  an  order 
dissolving  a  temporary  injunction,  and  which  does  not  determine 
or  make  some  final  disposition  of  the  case  in  which  the  injunction 
was  issued,  is  not  final,  and  is  not  alone  or  until  after  a  final  judg- 
ment in  "  the  action,  reviewable  on  error  or  appeal."  9S  So  in  an 
earlier  case  it  is  held  that  an  order  of  the  District  court  dissolving 
a  temporary  injunction  is  not  final,  and  no  appeal  lies  from  it 
before  final  judgment  in  the  action.99 

§  389.  In  New  Jersey. — The  general  New  Jersey  rule  in  equity 
is  that  all  orders  granting,  refusing,  continuing  or  dissolving  in- 
junctions are  appealable.1  But  where  an  order  granting  or  refusing 
an  injunction  is  so  temporary  in  its  operation,  or  is  so  unimportant 
that  the  party  affected  by  it  cannot  be  said  to  be  aggrieved,  or 
where  the  chancellor  has  simply  declined  to  grant  an  injunction 

1899;    Wetzstein   v.    Boston   &   Mori-  Atchison  v.   Peterson,    1     Mont.  561, 

tana  C.  C.  &  S.  M.  Co.,  25  Mont.  135.  570;    Hiller  v.   Collins,  63  Cal.  238; 

63  Pac.  1043.  Rogers  v.  Tennant,  45  Cal.  186. 

93.  Bennett  Bros.  v.  Congdon,  20  97.  Herzog  v.  Bernard,  12  Mont. 
Mont.  208,  50  Pac.  556.  523,  31  Pac.  78. 

94.  Blue  Bird  Mining  Co.  v.  Mur-  98.  Meng  v.  Coffee,  52  Neb.  44, 
ray,  9  Mont.  468,  23  Pac.  1022.  71  N.  W.  975. 

95.  Granite  Mountain  Min.  Co.  v.  99.  Scofield  v.  State  Nat.  Bank,  8 
Weinstein,  7  Mont.  346.  See  Bond  Neb.  16;  Smith  v.  Sahler,  1  Neb.  310. 
v.  Pacheco,  30  Cal.  532;  Brewster  v.  1.  Morgan  v.  Rose,  22  N.  J.  Eq. 
Hartley,  37  Cal.  23.  583,  593 ;  Attorney-General  v.  Pater- 

96.  Nelson  v.  O'Neal,  1  Mont,  284;  son,  9  N.  J.  Eq.  624. 

592 


Appeals. 


§390 


before  the  final  hearing  of  the  cause,  and  in  the  meantime  no  serious 
injury  can  result  or  the  subject  matter  in  controversy  be  with- 
drawn from  the  jurisdiction  of  the  court,  his  order  denying  the 
injunction  is  not  properly  appealable.2 

§  390.  In  New  York. — In  New  York  an  order  granting  or  dis- 
solving a  temporary  injunction  is  ordinarily  not  appealable 
to  the  Court  of  Appeals  where  it  does  not  substantially 
dispose  of  the  merits  of  the  controversy  and  does  not 
necessarily  affect  a  substantial  right.  But  where  the  com- 
plainant shows  no  cause  of  action  for  final  relief,  the  granting 
of  a  preliminary  or  temporary  injunction  is  error  of  law  which 
may  be  reviewed  on  appeal.4  And  where  an  order  of  general  term 
■dissolving  a  temporary  injunction  states  that  it  is  based  on  the 
ground  that  the  plaintiff  has  not  the  legal  right  to  maintain  the 
action,  a  question  of  law  is  presented  which  is  reviewable  by  the 
Court  of  Appeals.5    But  a  general  term  order  affirming  an  order 


2.  Attorney-General  v.  Pater  son,  9 
N.  J.  Eq.  624,  628,  per  Green,  C.  J.: 
"  The  granting  or  refusal  of  the  tem- 
porary injunction  during  the  pen- 
dency of  the  cause  was  a  matter  of 
discretion  with  the  chancellor.  It 
concluded  no  right  of  the  parties. 
The  order  is  in  no  sense  a  final  or- 
der. Costs  are  not  adjudged.  It  is 
not  an  order  from  which  an  appeal 
will  properly  lie.  Garr  v.  Hill,  5  N. 
J.  Eq.  639;  Nicoll  v.  Huntington,  1 
Johns.  Ch.  166." 

3.  People  v.  Schoonmaker,  50  N. 
Y.  499;  Paul  v.  Munger,  47  N.  Y. 
469.  In  Pfohl  v.  Sampson,  59  N.  Y. 
174,  Allen,  J.,  said :  "  This  court 
has,  after  a  full  examination  of  the 
question,  repeatedly  held  that  an  or- 
der continuing  or  dissolving  a  tem- 
porary injunction  when  it  did  not 
substantially  dispose  of  the  merits 
of  the  controversy,  involved  a  ques- 
tion of  discretion  and  did  not  affect 
a  substantial  right,  and  was,  there- 


fore, appealable  to  this  court.  The 
right  to  an  injunction  pendente  lite 
and  to  retain  the  same  until  the  final 
determination  of  the  action,  rests  in 
the  discretion  of  the  court  of  original 
jurisdiction  and  is  not  the  subject  of 
review  by  this  court.  Judge  Bronson 
thus  states  the  rule:  'The  grant- 
ing, continuing  and  dissolving  of 
temporary  injunctions  rests  in  the 
discretion  of  the  court  of  original 
jurisdiction,  and  the  court  agreeing, 
dismissed  an  appeal  from  an  order 
dissolving  an  injunction.'  Van  De 
Water  v.  Kelsey,  1  N.  Y.  533." 

4.  McHenry  v.  Jewett,  90  N.  Y.  58, 
applying  section  603  of  the  Code. 
See,  also,  Collins  v.  Collins,  71  N.  Y. 
270;  Wright  v.  Brown,  67  N.  Y.  1, 
Allen  v.  Meyer,  73  N.  Y.  1,  which  are. 
useful  by  analogy  as  applicable  to 
other  provisional  remedies  provided 
by  the  Code. 

5.  Birge  v.  Berlin  Bridge  Co.,  133 
N.  Y.  477,  31  N.  E.  609,  per  Peck- 


593 


38 


§  390  Appeals. 

o-ranting  a  temporary  injunction  is  not  reviewable  by  the  Court 
of  Appeals,  except  where  it  plainly  appears  on  the  face  of  the  com- 
plaint, that  the  case  is  one  in  which  by  settled  adjudication  the 
plaintiff  upon  the  facts  stated  is  not  entitled  to  final  relief.  In  all 
other  cases  the  granting  of  the  order  rests  in  the  sound  discretion 
of  the  court  of  first  instance,  subject  to  review  only  by  the  general 
term.6  So,  too,  where  a  general  term  order  reversing  an  order 
granting  a  preliminary  injunction  recites  that  it  is  made  upon  the 
ground  that  the  action  cannot  be  maintained,  it  presents  a  question 
of  law  which  is  reviewable  in  the  Court  of  Appeals.7  But  where 
the  question  of  law  which  arises  on  the  complaint  is  doubtful,  it 
should  not  be  decided  on  a  motion  to  vacate  the  injunction,  but 
should  be  deferred  until  a  hearing  of  the  case  upon  the  merits.* 
A  final  judgment  for  an  injunction  which  is  too  broad  will  be 
modified  on  appeal  and  made  to  conform  to  the  complaint  and  to 
the  findings  in  favor  of  plaintiff.9  And  a  final  judgment  which 
awards  an  injunction  where  a  mere  abstract  right  has  been  violated t 
or  in  cases  of  public  nuisance  in  favor  of  an  individual  who  has 
not  shown  a  special  injury  to  himself,  is  erroneous  and  will  bo 
reversed  or  modified  on  appeal'.10    In  this  connection  it  is  decided 

ham,  J.:     "  In  such  a  case  a  question  liberately  heard  and  passed  upon  on 

of   law   is   raised    which    we   can   re-  appeal  from  the  final  judgment.  Here 

view."      Anderson   v.    Anderson,    112  the      only     question      presented      is 

N.  Y.  104,  19  N.  E.  427.  whether    the    words,    sliced    animals, 

6.  Hudson  Riv.  Tel.  Co.  v.  Water-  etc.,  which  the  plaintiffs  claim  to> 
vliet  Turnpike  &  R.  Co.,  121  N.  Y.  have  appropriated  as  a  trade  mark 
397,  24  N.  E.  832;  Williams  v.  West-  are  capable  of  being  so  appropriated, 
em  U.  Tel.  Co.,  93  N.  Y.  G40.  This   is   a   question  of   law,   and   al- 

7.  Anderson  v.  Anderson,  112  N.  though  it  is  not  so  simple  a  question 
Y.  104,  19  N.  E.  427.  See,  also,  Tol-  and  its  solution  is  not  so  clear  that 
man  v.  Syracuse,  etc.,  R.  Co.,  92  N.  we  should  against  the  objection  of 
Y.  353.  either  party  decide  it  on  appeal,  yet 

8.  Selchow  v.  Baker,  93  N.  Y.  59,  as  both  request  such  a  decision,  etc., 
where  the  court  said:  "The  case  we  have  concluded  to  determine  it 
must  be  very  clear  to  justify  this  now,  and  thus  dispose  of  the  con- 
court  in  deciding  the  merits  of  the  troversy." 

controversy  on  a  mere  motion,  and  it  9.  Cunningham   v.   Fitzgerald,    13S 

would   ordinarily    decline    in    a   case  N.  Y.  1G5,  33  N.  E.  840;   Fischer  v. 

presenting   any    serious   question,   to  Blank,  138  N.  Y.  244,  250,  33  N.  E. 

deprive  either  party  of  the  privilege  1040. 

of  having  the  merits  of  his  case  de-  10.  Adler  v.   Metropolitan   El.   R~. 

504 


Appeals.  §  390 

that  when  a  decree  granting  an  injunction  contains  a  provision 
allowing  an  application  to  modify  it,  an  order  making  such  modifi- 
cation and  adjudging  the  defendant  in  contempt  but  postponing 
his  punishment  until  the  coming  in  of  a  further  report  by  a  referee, 
is  an  amendment  of  the  judgment  and  is  appealable  whether  inter- 
locutory or  not.11  The  established  rule  of  the  court  of  last  resort 
in  the  State  of  New  York  is  that  to  justify  that  court  in  dissolving 
a  temporary  injunction  where  the  inevitable  result  will  be  the 
defeating  of  plaintiff's  remedy  without  a  trial,  it  must  be  satisfied 
that  the  case  is  one  in  which  by  settled  adjudication  the  plaintiff 
upon  the  facts  stated  is  not  entitled  to  final  relief.12  In  this  State 
it  is  also  decided  that  when  in  an  action  for  a  permanent  injunction 
a  preliminary  injunction  has  been  denied  in  the  court  below,  the 
Appellate  Division  will  usually  leave  the  question  of  the  right  to 
be  determined  on  the  trial  but  that  where  it  is  apparent  that  no 
facts  substantially  different!  will  be  developed  on  the  trial  and 
there  is  little  or  no  dispute  as  to  any  material  fact,  but  merely  as 
to  the  conclusions  to  be  drawn  therefrom,  the  Appellate  Division 
will  determine  the  right  to  a  preliminary  injunction  on  appeal 
from  the  order  denying  it.13  In  New  York  an  appeal  cannot  be 
taken  from  a  temporary  injunction  order  which  has  been  granted 
without  notice  where  no  motion  to  dissolve  it  has  been  made.14 
Upon  appeal  from  an  order  granting  an  injunction  pendente  lite 
restraining  the  carrying  out  of  a  contract,  the  Appellate  Division 

Co    138  N.  Y.  173,  33  N.  E.  935.  and  of  business  competition.     Munro 

11.  Saal  v.  South  Brooklyn  Ry.  v.  Tousey,  129  N.  Y.  38,  29  N.  E.  9. 
Co.  122  App.  Div.  (N.  Y.)  364,  106  See,  also,  Bell  v.  Locke,  8  Paige,  75; 
N.  Y.  Supp.  996.  Hagg  v.  Kirby,  8  Ves.  215. 

12.  Young  v.  Rondout  &  K.  Gaa  13.  Dutton  &  Co.  v.  Cupples,  117 
Co..  129  N.  Y.  57,  29  N.  E.  83.  Where  App.  Div.  (N.  Y.)  172,  102  N.  Y. 
an  injunction  was  granted  restrain-  Supp.  309. 

in"  a  publisher  from  using  a  certain  14.  Aldinger  v.  Pugh,  57  Hun,  181, 

name   to   designate   his   publications,  185,  10  N.  Y.  Supp.  684,  aff'd  132  N. 

the   Court  of   Appeals   dissolved  the  Y.  403.     See  §§  626,  772  and  1347  of 

injunction   on    the   ground    that   the  the  code  of  procedure.     A  motion  for 

uame  was  not  so  similar  to  the  name  dissolution   must   be   made,   and   the 

adopted  by  plaintiff  as  to  mislead  a  appeal  taken  from  the  order  denying 

person  of  ardinary  intelligence,   and  the  motion.     See  Matter  of  Johnson, 

therefore  that  the  injunction  unduly  27  Hun,  538. 
interfered  with  the  freedom  of  trade 

595 


§§  390a,  391  Appeals. 

will  not  vacate  the  injunction  because  of  an  offer  to  amend  the 
proposed  contract  so  as  to  make  it  more  fair  and  reasonable.15 

§  390a.  In  North  Carolina ;  North  Dakota. — In  North  Carolina 
an  order  granting  or  refusing  an  injunction  is  appealable,16  though 
made  by  a  judge  at  chambers.17  In  North  Dakota  an  order  deny- 
ing a  motion  to  dissolve  a  temporary  injunction  is  not  appealable 
on  the  ground  that  it  is  not  a  final  decree.18 

§  391.  In  Ohio,  Oklahoma,  Pennsylvania. — In  Ohio,  an  appeal 
lies  to  the  District  Court  from  a  common  pleas  interlocutory  order 
dissolving  an  injunction,  but  the  order  is  not  suspended  by  the 
appeal  except  by  the  order  of  the  Circuit  Court.19  When  a  pre- 
liminary injunction  is  not  vacated  by  interlocutory  decree  but  by 
the  final  decree,  an  appeal  suspends  the  judgment  and  takes  the 
case  into  the  District  Court  with  the  injunction  still  in  force.29 
In  Oklahoma  it  is  decided  that  the  right  to  an  appeal  from  an 
order  of  the  judge  modifying  a  temporary  injunction  only  exists 
by  virtue  of  the  statute,  and  is  in  derogation  of  long  established 
rules  of  practice  and  must  be  strictly  construed.21  As  the  statute 
does  not  provide  for  an  appeal  to  the  Supreme  Court  from  an  order 
which  refuses  to  modify  an  injunction,  a  right  to  appeal  does  not 
exist.22  And  in  an  earlier  case  in  Oklahoma  it  is  decided  that  no 
appeal  lies  to  the  Supreme  Court  from  an  interlocutory  restraining 
order,  even  though  such  order  operates  as  a  partition  of  land.  The 
party  restrained  must  find  his  remedy,  if  any,  in  a  modification 
of  the  order  by  the  lower  court.23  Under  the  Pennsylvania  Act  of 
186G,  an  appeal  lies  to  the  Supreme  Court  where  an  interlocutory 
injunction  has  been  granted  but  not  where  it  has  been  refused.24 

15.  Robinson  v.  New  York,  West-  the  scope  of  such  an  appeal,  see  Keys 
Chester  &   B.  R.   Co.,    123   App.  Div.       v.  Williamson,  31  Ohio  St.  561. 

(N.  Y.)   339,  108  N.  Y.  Supp.  92.  20.  Caldwell  v.  High,  6  Ohio  Bull. 

16.  Jones  v.  Thome,  80  N.  C.  72;        138. 

Halcombe  v.  Haywood  Com'rs,  89  N.  21.  Herring   v.    Wiggins.    7    Okla. 

C.  346.  312,  54  Pac.  483. 

17.  First  Nat.  Bank  v.  Jenkins.  64  22.  Herrin  v.  Merrilies,  7  Okla. 
N.  C.  719.  261,  54  Pac.  467. 

18.  Tracy  v.  Scott,  13  N.  D.  577,  23.  Hadley  v.  Ulrich,  1  Okla.  380, 
101   N.  W.  905.                                             33  Pac.  705. 

19.  Ohio  Rev.  Stat.,  §  5226.    As  io  24.  HilbiBh  v.  Catherman,  CO  Pa. 

590 


Appeals. 


§392 


§  392.  In  South  Carolina. — Although  in  the  earlier  cases  in 
South  Carolina  it  is  decided  that  an  interlocutory  injunction  made 
"  without  prejudice,"  restraining  the  defendant  from  enforcing 
his  judgment  against  the  plaintiff  until  a  decision  is  reached  upon 
the  merits,  is  not  appealable,25  and  that  no  appeal  lies  from  an 
order  dissolving  a  temporary  injunction  and  discharging  a  rule 
to  show  cause,26  yet  in  later  cases  it  is  decided  that  while  the  grant- 
ing or  refusing  of  an  interlocutory  order  of  injunction,  upon  the 
merits  is  not  as  a  rule  appealable,  it  is  appealable  when  granted  or 
refused  upon  a  "  purely  "  legal  ground,  and  especially  a  juris- 
dictional ground  ;27  and  that  an  order  dissolving  a  temporary  in- 
junction and  refusing  to  continue  the  same  is  appealable  where 
such  injunction  is  essential  to  the  assertion  of  the  legal  right 
claimed  by  the  plaintiff.28  So  it  has  been  decided  that  an  inter- 
locutory restraining  order  granted  by  a  circuit  judge  was  appeal- 
able before  the  Act  of  19  0129  where  it  involved  the  merits  and  was 
also  appealable  under  said  act.30  And  in  an  early  case  in  South 
Carolina  it  is  decided  that  on  appeal  to  the  Supreme  Court,  from 


St.  444,  per  Sharswood,  J. :  "  It  is 
evidently  only  in  the  case  of  an  order 
or  decree  granting  an  injunction,  that 
this  exception  was  introduced  to  the 
rule  before  established,  that  appeals 
lie  only  from  final  orders  or  decrees 
in  equity.  There  were  strong  reasons 
why  this  vast  power  in  the  hands 
often  of  one  man  should  be  subjected 
to  immediate  review.  The  same  rea- 
son does  not  exist  where  the  appli- 
cation for  the  injunction  has  been 
refused." 

25.  Garlington  v.  Copeland,  25  S. 
C.  41,  per  Mclver,  J.:  "If  appeal- 
able at  all,  it  must  come  under  subdi- 
vision 1  of  that  section  of  the  code 
which  reads  as  follows :  '  Any  inter- 
mediate judgment,  order  or  decree  in- 
volving the  merits  .  .  .  and  final 
judgments,  are  appealable.'  .  . 
While  the  order  in  question  is  an  in- 
termediate order,  we  do  not  think  it 
involves  the  merits  of  the  action  in 


which  it  was  made,  and  therefore  it  is 
not  appealable.  The  order  is  nothing 
more  than  an  interlocutory  injunc- 
tion, made  solely  for  the  purpose  of 
keeping  the  subject  of  the  action  in 
statu  quo  until  the  merits  of  the 
action  can  be  considered  and  deter- 
mined." 

26.  South  Carolina  &  G.  R.  R.  v. 
East  Shore  T.  Co.,  48  S.  C.  315,  26 
S.  E.  613. 

27.  Salinas  v.  Aultman,  49  S.  C. 
378,  27  S.  E.  407.  See  Alston  v. 
Limehouse,  60  S.  C.  559,  39  S.  E.  188. 

28.  South  Bound  Railroad  v.  Bur- 
ton, 63  S.  C.  348,  41  S.  E.  45} ;  Sea- 
brook  v.  Mostowitz,  51  S.  C.  433,  29 
S.  E.  202;  Strom  v.  Mortgage  Co., 
42  S.  C.  97,  20  S.  E.  16. 

29.  23  Stat.  623. 

30.  Williams  v.  Jones,  62  S.  C. 
473,  40  S.  E.  881.  See,  also,  Lamar 
v.  Croft,  73  S.  C.  407,  53  S.  E.  540. 


;or 


§§  392a,  393  Appeals. 

an  order  refusing  an  interlocutory  injunction,  the  order  may  bo 
reversed,  with  leave  to  plaintiff  to  apply  'again  for  the  injunction, 
so  soon  as  the  remittitur  is  sent  down,  and  the  defendant  may  be 
restrained  in  the  meantime,  by  order  of  the  appellate  court;  and 
if  the  injunction  was  refused  on  the  ground  that  the  matters  at 
issue  were  res  adjudicata,  the  cause  should  not  be  heard  on  its 
merits  until  the  appeal  is  disposed  of.31 

§  392a.  In  Texas;  Utah. — In  Texas,  no  appeal  lies  from  an 
order  denying  an  application  for  an  injunction.32  And  a  judgment 
dissolving  a  temporary  injunction  and  awarding  costs  but  not 
otherwise  disposing  of  the  subject  matter  of  litigation  is  not  a  final 
judgment  which  is  appealable.33  In  Utah  an  order  granting  a 
temporary  injunction  pending  the  hearing  of  the  case  on  the 
merits  is  not  a  final  judgment  from  which  there  is  a  right  of 
appeal.34 

§  393.  In  Virginia. — In  Virginia,  an  order  of  the  Chancery 
Court  dissolving  an  injunction  was  made  reviewable  by  appeal  to 
the  Supreme  Court  of  Appeals  under  section  3454  of  the  Code  of 
1887,  or  a  motion  might  be  made  to  the  Court  of  Chancery  for 
reinstatement  of  the  injunction,  and  appeal  taken  from  the  refusal 
to  reinstate ;  but  if  the  court  below  refused  the  injunction  in  the 
first  place,  the  remedy  was  not  by  appeal,  but  by  application  to  a 
judge  of  the  Supreme  Court,  on  the  original  moving  papers  and 

31.  Sease  v.  Dobson,  34  S.  C.  345,  Pollitzer,    24    S.    C.    81;    Pringle    v. 

per   Aldrich,    J.:       "The     Court   of  Sizer,  3  S.  C.  335;  Covar  v.  Sallat, 

Common     Pleas     cannot     hear     this  22  S.  C.  266."     This  decision  of  Al- 

action   until    the    appeal    herein    has  drich,   J.,   was    affirmed   by    the   Su- 

been    determined     by     the    Supreme  preme  Court.    Sease  v.  Dobson,  34  S. 

Court,  and  the  judgment  remitted  to  C.  345,  357. 

this  court.     .     .     .     This  view  of  the  32.  Laredo  City  v.  Martin,  52  Tex. 

law    is    supported  by  the  reasoning  548;    Gibson  v.   Templeton,    62   Tex. 

and  judgments  in  the  following  cases:  555. 

Bank  v.  Stelling.  32  S.  C.  102;   Ag-  33.  International,   etc.,   R.    Co.   v. 

new  v.  Adams,  24  S.  C.  87;  Whaley  Smith  County,  58  Tex.  74. 
v.  Charleston,  8  S.  C.  346 ;  McCown  v.  34.  North  Point  Consol.  I.  Co.  v. 

McSween,  29  S.  C.  134;  Hammond  v.  Utah  &  Salt  Lake  C.   Co.,  14  Utah, 

Railway  Co.,  15  S.  C.  10;  Elliott  v.  155,  46  Pac.  824. 

598 


Appeals. 


§  393a 


the  order  of  refusal.33  So  in  a  recent  case  it  has  been  decided  that 
no  appeal  lies  to  the  Supreme  Court  of  Appeals  from  an  order  of 
a  Circuit  Court  refusing  an  injunction  but  that  the  remedy  in  such 
a  case  is  by  an  application  to  the  appellate  court  to  grant  the 
injunction  refused.36  In  Virginia  to  entitle  the  party  to  the  right 
of  appeal  from  a  decree  dissolving  an  injunction,  the  amount  in- 
volved must  be  in  excess  of  a  certain  amount.37  And  a  decree  over- 
ruling a  demurrer,  giving  the  defendants  leave  to  answer,  and  con- 
tinuing an  injunction  in  force  until  the  further  order  of  the  court, 
is  not  an  appealable  decree  where  there  was  no  motion  to  dissolve, 
and  the  case  was  heard  solely  upon  the  demurrer  to  the  bill.38 

§  393a.  In  Washington. — In  the  Territory  of  Washington  an 
appeal  did  not  lie  under  the  organic  law,39  from  an  order  granting 
or  dissolving  a  temporary  injunction.40  and  in  the  State  of  Wash- 
ington an  order  dissolving  a  temporary  injunction  is  not  appeal- 
able under  the  Code41  unless  the  court  has  found  that  the  party 
<  lijuined  was  insolvent,  as  such  finding  is  jurisdictional  to  the 


35.  Fredenheini  v.  Rohr,  87  Va. 
764;  Va.  Code  of  1887,  §  3436.  Acts 
W.  Va.,  1872-73,  ch.  17,  §  1,  permit- 
ting an  appeal  from  a  decree  or  order 
dissolving  an  injunction,  did  not  au- 
thorize an  appeal  from  an  order 
granting  or  refusing  to  dissolve  an 
injunction,  and  an  appeal  from  such 
order  must  be  dismissed  as  improvi- 
dently  granted,  although  subsequent 
to  its  allowance  a  statute  was  enacted 
(Acts,  1882,  ch.  157,  §  1),  authoriz- 
ing an  appeal  from  "  a  decree  or 
order  dissolving  or  refusing  to  dis- 
solve an  injunction."  Robrecht  v. 
Wharton,  2  S.  E.  793,  29  W.  Va.  746. 
When  one  has  taken  forcible  pos- 
session of  premises,  and  an  injunc- 
tion is  granted  staying  his  hand  and 
forbidding  him  to  do  anything  fur- 
ther, and  permit  the  plaintiff  to  cul- 
tivale  the  land  this  is  not  an  order 
"  changing    the    possession    of    prop- 


erty," within  the  meaning  of  section  1, 
ch.  17,  Acts  W.  Va.,  1S72-73,  which 
provides  that,  "  in  any  case  in  chan- 
cery, wherein  there  is  a  decree  or 
order  dissolving,  or  refusing  to  dis- 
solve, an  injunction,  or  requiring 
.  .  .  the  possession  or  title  of  prop- 
erty to  be  changed/'  an  appeal  shall 
be  granted.  Robrecht  v.  Wharton,  29 
W.  Va.  746,  2  S.  E.  793. 

36.  Hudson  v.  Barham,  101  Va.  63, 
43  S.  E.  189.  99  Am.  St.  Rep.  S49. 

37.  Shoemaker  v.  Bowman,  98  Va. 
688,  37  S.  E.  278,  construing  §§  3454, 
3455  of  the  Code. 

38.  Norfolk  &  W.  R.  Co.  v.  Old 
Dominion  B.  Co.,  97  Va.  89,  33  S. 
E.  385. 

39.  U.  S.  Rev.  Stat.,  §   1869. 

40.  Northern  Pac.  R.  Co.  v.  Wells, 
Fargo  &  Co.,  2  Wash.  T.  303; 
Mahncke  v.  Tacoma,  1  Wash.  St.  18. 

41.  Pierce's  Code,  §  1048. 


599 


§  394:  Appeals. 

appeal.43  So  where  defendant  moves  to  dissolve  the  temporary 
injunction  granted  plaintiff,  and  also  for  an  injunction  against 
plaintiff,  an  order  denying  both  branches  of  the  motion,  without 
adjudicating  upon  plaintiff's  prayer  for  a  permanent  injunction, 
is  not  a  final  judgment  from  which  an  appeal  will  lie  to  the 
Supreme  Court  of  the  State.43  And  in  Washington,  under  the 
Code,44  an  appeal  lies  from  an  order  granting  a  temporary  manda- 
tory injunction.45  In  this  State  it  is  decided  that  in  matters  of 
equitable  cognizance  the  jurisdiction  of  the  court  on  appeal  does 
not  depend  on  the  amount  in  controversy.46 

§  394.  In  Wisconsin — Under  the  Wisconsin  statutes,  an  order 
which  "  grants,  refuses,  modifies  or  dissolves  an  injunction  may 
be  carried  by  appeal  to  the  Supreme  Court."  47  On  an  appeal  by 
defendant  from  an  order  of  the  Circuit  Court,  refusing  defend- 
ant's motion  to  dissolve  a  preliminary  injunction,  the  Supreme 
Court  will  not,  on  disputed  averments  in  the  pleadings,  and  con- 
flicting ex  parte  affidavits,  enter  into  the  merits  of  a  claim  of 
estoppel  made  by  the  defendant,  but  will  merely  inquire  if  the 
Circuit  Court  has  properly  exercised  its  discretion  in  refusing  to 
dissolve  the  injunction.48  Upon  the  entry  of  an  order  dissolving  an 
injunction  in  case  the  plaintiff  shall  refuse  to  do  a  specific  act  in 
the  nature  of  a  concession  to  defendant,  the  plaintiff's  right  to 
appeal  from  the  conditional  order  at  once  accrues  to  him  upon  his 
refusal  to  do  the  specific  act,  though  the  defendant  had  not  then 
entered  the  absolute  order  of  dissolution.49    Of  course  a  judgment 

42.  Anderson  v.  McGregor,  36  37  Wash.  604,  79  Pac.  1105,  so  hold- 
Wash.  124,  78  Pac.  776.  ing  in  the  case  of  an  appeal  from  a 

43.  Johnstone  v.  Eissenbeis,  1  judgment  dismissing  an  injunction. 
Wash.  St.  259,  per  Hoy t,  J.:  "There  47.  Sanborn  &  B.  Ann.  Stats, 
was  no  final  disposition  of  the  cause.  (1889),  §  3069. 

The  plaintiff  is  still  in  court  asking  48.  Koeffler  v.  Milwaukee,  85  Wis. 

for  the  permanent  injunction,  and  his  397,     55    N.     W.     400.       See,     also, 

right  thereto  has  never  oeen  adjudi-  Anderton     v.     Milwaukee,     82     Wis.' 

cated"  279,    52    N.    W.    95,    where,    on    an 

44.  Bal.  Code,  §  6500,  subd.  3.  appeal  on  similar  facts,  an  order  re- 

45.  State  v.  Superior  Court,  28  fusing  to  dissolve  a  preliminary  in- 
Wash.  403,  68  Pac.  865.  junction  was  sustained. 

46.  Trumbull  v.  Jefferson  County,  49.  Brock      v.      Dole,      66      Wis. 

600 


Appeals. 


§  395 


awarding  a  permanent  injunction  is,  like  other  final  judgments, 
appealable.50  An  order  adjudging  a  defendant  in  criminal  con- 
tempt for  the  violation  of  an  injunction  is  not  appealable.51  And 
an  order  denying  a  stay  of  proceedings  is  not  an  injunction  and  is 
not  appealable  under  a  statutory  provision  allowing  an  appeal 
from  an  order  which  "  grants,  refuses,  continues,  or  dissolves  an 
injunction."  52 

§  395.  Appealable  decrees  in   Federal  courts A  decree   in 

equity  is  final  for  the  purposes  of  appeal  withiu  the  rules  and 
practice  of  the  Federal  courts  if  it  terminates  the  litigation  be- 
tween the  parties  on  the  merits  of  the  case,  and  leaves  nothing  to 
be  done  but  to  enforce  by  execution  what  has  been  determined.53 
But  a  decree,  rendered  at  the  suit  of  a  stockholder  appointing  a 
receiver  in  place  of  the  liquidators  of  the  corporation,  because  of 


142,  28  N.  W.  334,  per  Cole, 
C.  J. :  "  By  the  order  of  Novem- 
ber 9  the  Circuit  Court  modi- 
fied its  injunction  order,  and  further 
provided  that  in  case  the  plaintiff 
did  not  permit  the  defendant  to  use 
the  chimney  on  request,  then  the  in- 
junction order  be,  and  the  same  was 
dissolved.  It  appears  that  the  day 
following  the  making  of  this  order,  a 
personal  request  was  made  of  the 
plaintiff  to  permit  defendant  to  use 
the  chimney,  which  request  was  re- 
fused. On  proof  of  this  fact,  the  or- 
der of  November  13  was  entered, 
unconditionally  dissolving  the  in- 
junction. But,  as  soon  as  the  plain- 
tiff refused  to  assent  to  the  condition 
upon  which  the  injunction  was  to  be 
continued,  such  injunction  fell  by  its 
very  terms.  The  subsequent  order 
performed  no  other  office  than  to  fur- 
nish record  evidence  that  a  request 
had  been  made  and  refused;  in  other 
words,  that  the  injunction  was  dis- 
solved. It  did  not,  and  of  course 
could    not,    dissolve    an    injunction 


which  was  no  longer  in  force.  The 
appeal,  in  this  case,  was  from  the 
order  of  November  9,  and  was  per- 
fected November  12,  after  this  con- 
ditional order  had  become  absolute 
and  the  injunction  dissolved.  So  it 
is  really  an  appeal  from  an  order 
which  dissolves  an  injunction,  and 
must  be  so  considered.  In  that  view, 
there  can  be  no  question  as  to  its 
appealability." 

50.  In  Wendlandt  v.  Cavanaugh 
85  Wis.  256,  55  N.  W.  408,  the  conclu- 
sion of  law  of  the  Circuit  Court  was 
"that  the  plaintiff  is  entitled  to  a 
permanent  and  mandatory  injunc- 
tion as  prayed  in  his  complaint;" 
from  the  judgment  entered  for  plain- 
tiff on  this  conclusion,  the  defendant 
appealed,  and  the  supreme  court  af- 
firmed the  judgment. 

51.  Williamstown  v.  Darge,  71 
Wis.  643,  38  N.  W.  187;  In  re  Mur- 
phey,  39  Wis.  286. 

52.  Rossiter  v.  Aetna  Life  Ins.  Co., 
96  Wis.  466,  71  N.  W.  898. 

53.  Bostwick   v.    Brinkerhoff,    106 


601 


§396 


Appeals. 


their  adverse  interests  to  the  corporation,  and  restraining  them 
from  interference  with  the  receiver,  has  not  such  appealable  finality 
as  to  the  displaced  liquidators,  as  entitles  them  to  an  appeal  either 
in  their  official  or  individual  capacities.54  And  an  order  imposing 
a  fine  for  a  violation  of  a  preliminary  injunction  cannot  be  re- 
viewed except  upon  an  appeal  from  the  final  decree  in  the  cause.55 

§  396.  Appeals  in  Circuit  Court  of  Appeals. — On  an  appeal  to 
the  Circuit  Court  of  Appeals,  from  an  interlocutory  order  grant- 
ing an  injunction,  the  right  of  the  complainant  to  other  relief 
demanded  by  his  bill,  cannot  be  considered  when  it  has  not  yet 
been  passed  upon  by  the  court  below ;  but  the  only  question  before 
the  appellate  court  is  the  propriety  of  the  injunction.58  The  policy 
of  the  law  creating  the  Circuit  Court  of  Appeals,  favors  the  allow- 
ance of  appeals  in  all  cases,  if  the  right  of  appeal  is  exercised  in 
time  and  in  the  prescribed  form ;  but  the  appeal  or  writ  of  error 
must  be  applied  for  by  the  parties  or  their  solicitors  promptly,  and 
allowed  by  one  of  the  judges  of  the  trial  court.57    The  act  creating 


U.  S.  3,  1  S.  Ct.  15,  27  L.  Ed.  73; 
Grant  v.  Phoenix  Mut.  Life  Ins.  Co., 
106  U.  S.  429,  1  S.  Ct.  414,  27  L. 
Ed.  237;  St.  Louis,  I.  M.  &  S.  R. 
Co.  v.  Southern  Exp.  Co.,  108  U.  S. 
24,  2  S.  Ct.  6,  27  L.  Ed.  638;  Win- 
throp  Iron  Co.  v.  Meeker,  109  U.  S. 
180,  3  S.  Ct.  Ill,  27  L.  Ed.  898;  El- 
liott v.  Sackett,  108  U.  S.  132,  2  S. 
Ct.  375,  27  L.  Ed.  678;  Cosby  v.  Bu- 
chanan, 90  U.  S.  420,  23  L.  Ed.  138. 
54.  Dufour  v.  Lang,  54  Fed.  913, 
following  the  decision  in  Forgay  v. 
Conrad.  6  How.  204,  12  L.  Ed. 
404,  where  Laney,  C.  J.,  said: 
"  When  the  decree  decides  the 
right  to  the  property  in  contest, 
and  directs  it  to  be  delivered  up  by 
the  defendant  to  the  complainant,  or 
directs  it  to  be  sold,  or  directs  the 
defendant  to  pay  a  certain  sum  of 
money  to  the  complainant,  and  the 
complainant  is  entitled  to  have  such 
decree  carried  immediately  into  exe- 
cution, the  decree  must  be  regarded 


as  a  final  one  to  that  extent,  and 
authorizes  an  appeal.  .  .  .  This 
rule,  of  course,  does  not  extend  to 
cases  where  money  is  directed  to  be 
paid  into  court,  or  property  to  be 
delivered  to  a  receiver,  or  property 
held  in  trust  to  be  delivered  to  a 
new  trustee  appointed  by  the  court, 
or  to  cases  of  like  description." 

55.  Nassau  Elec.  R.  Co.  v. 
Sprague  Elec.  R.  &  M.  Co.,  95  Fed. 
415,  37  C.  C.  A.  146;  citing  Debs,  In 
re,  158  U.  S.  564,  15  Sup.  Ct.  900,  39 
L.  Ed.  1092. 

56.  Hart  v.  Buckner,  54  Fed.  925. 

57.  Warner  v.  Texas,  etc.,  R.  Co., 
54  Fed.  920,  by  the  court:  "The 
policy  of  the  law,  in  the  creation  of 
this  court,  shows  marked  liberality  in 
allowing  appeals  from  trial  courts 
in  all  cases,  and,  on  the  other  hand, 
requires  a  speedy  prosecution  of  all 
appeals  or  writs  of  error.  It  is  no 
part  of  the  clerk's  duty,  as  clerk,  to 
procure  the  allowance  of  writs  of  er- 


602 


Appeals. 


§396 


the  Circuit  Court  of  Appeals'  and  prescribing  in  what  cases  appeals 
might  be  had  does  not,  as  amended  by  the  acts  of  1895  and  1900 
authorize  an  appeal  from  an  order  refusing  to  issue  a  preliminary 


lor,  and  the  approval  of  bonds  for 
appeals  or  writs  of  error.  This  is 
the  office  of  parties,  or  of  their  at- 
torneys and  solicitors.  It  is  also 
clearly  not  the  duty  of  the  clerk,  or 
his  privilege,  to  change  tbe  writ  of 
error,  after  it  is  allowed,  by  erasing 
and  inserting  a  date,  or  by  adding  a 
date,  any  more  than  it  is  to  make 
any  other  alteration  in  such  papers. 
Nor  may  he,  without  the  order  of  the 
proper  court  or  judge,  erase  his  own 
file  mark  on  a  paper  which  parties 
have  procured  to  be  filed.  He  may, 
and  doubtless  should,  in  some  cases, 
add  a  new  file  mark  or  memorandum, 
signed  by  him  officially,  to  show  such 
facts  in  connection  with  his  custody 
of  the  files  as  appears  to  him  might 
be  or  become  materiaJ.  In  the  pres- 
ent case  he  might,  without  overstep- 
ping his  duty,  have  noted  on  the  writ 
what  actually  had  occurred  within 
his  knowledge  as  to  the  signature  of 
the  judge  on  the  writ  of  error.  We 
do  not  say  that  it  was  his  duty  to 
do  this.  We  only  say  that  to  have 
done  it  would  not  have  been  improper. 
The  parties  have  a  right  to  appeal 
or  sue  out  writs  of  error  from  all 
final  judgments  and  decrees,  and 
from  certain  interlocutory  decrees,  if 
that  right  is  invoked  in  time  and  in 
the  prescribed  form.  A  part  of  that 
prescribed  form  is  for  one  of  the 
judges  of  the  trial  court  to  allow  the 
appeal  or  writ  of  error,  and  the  ap- 
peal or  writ  of  error  is  not  '  taken  or 
sued  out '  until  that  allowance  is  ob- 
tained (Barrel  v.  Transportation  Co., 
3  Wall.  424  18  L.  Ed.  168;  Brooks  v. 
Norris,  11  How.  204,  13  L.  Ed.  665; 


Scarborough  v.  Pargoud,  108  U.  S. 
567,  2  Sup.  Ct.  877,  27  L.  Ed.  824). 
and  parties  and  their  attorneys  some- 
times incur  serious  hazard  of  losing 
their  right  of  appeal  by  omitting  to 
take  the  proper  steps  in  due  time,  so 
that  misconnections,  liable  to  occur 
may  not  prevent  their  obtaining  the 
necessary  allowance  from  a  judge 
whose  other  duties  take  him  to  dif- 
ferent and  distant  places  in  his  dis- 
trict. The  form  of  writ  of  error  for 
taking  a  case  from  the  Circuit  Court 
to  the  Supreme  Court,  which  was 
prescribed  many  years  ago  under  an 
act  of  Congress,  and  which  has  been 
in  use  ever  since,  has  on  it  a  mem- 
orandum of  allowance  to  be  signed  by 
the  judge.  Section  9,  Act  171)2;  Mus- 
sina v.  Cavazos,  6  Wall.  357,  18 
L.  Ed.  810.  In  actual  prac- 
tice, the  petition  for  writs  of 
error  is  also  indorsed  '  allowed '  by 
the  judge.  The  office  of  each  is  to 
show  the  fact  that  the  writ  is  al- 
lowed, and  it  does  not  appear  to  us  to 
be  jurisdictional  that  the  allowance 
should  be  indorsed  on  both,  or  on 
one  rather  than  the  other.  It  is  well 
to  proceed  in  order,  and  in  a  matter 
of  general  usage  so  long  established, 
parties  could  not  complain  if  some 
strictness  should  be  exercised  in  en- 
forcing compliance  with  prescribed 
forms.  In  this  case  the  plaintiff  in 
error  did  not  use  reasonable  diligence 
to  get  his  bond  approved  in  time,  and 
to  obtain  the  customary  indorsement 
on  the  writ  of  error.  He  relied  on 
the  clerk  to  do  for  him  what  the  clerk 
was  under  no  official  obligation 
to  do." 


603 


§  397  Appeals. 

injunction.58  But  under  the  act  of  Congress  providing  that  an 
appeal  will  not  lie  from  an  order  dissolving  a  preliminary  restrain- 
ing order,59  it  has  been  decided  that  the  Court  of  Appeals  has  juris- 
diction to  entertain  an  appeal  from  a  decree  dissolving  such  an 
order,  which  was  to  be  regarded  as  a  final  order  owing  to  the  fact 
that,  though  it  did  not  in  terms  dismiss  the  bill,  it  was  based  on  a 
decision  that  the  court  could  give  the  plaintiff  no  relief  under  the 
prayer  of  his  bill.60  The  docket  entry  in  an  infringement  suit, 
"  opinion-decree  for  complainants,"  does  not  constitute  a  decree  for 
an  injunction  which  is  required  to  give  the  Circuit  Court  of 
Appeals  jurisdiction,  nor  can  such  an  entry  be  aided  for  that  pur- 
pose by  reference  to  the  opinion ;  and  hence  an  appeal  taken  before 
any  decree  is  drawn  is  premature.61 

§  397.  Same  subject;  assignment  of  errors. — The  eleventh  rule 
of  the  Circuit  Court  of  Appeals  for  the  fifth  circuit  requiring 
an  assignment  of  errors  in  the  court  below,  which  shall  form  part 
of  the  transcript  on  appeal,  is  applicable  to  all  cases  of  appeals  in 
equity,  as  well  as  in  admiralty,  and  to  writs  of  error.  This  rule 
was  applied  to  a  decree  enjoining  removed  liquidators  from  inter- 
fering with  a  receiver  appointed  in  their  place.62 

58.  Omaha  &  S.  W.  R.  Co.  v.  Chi-  strictions  as  are  or  may  be  prescribed 
cago,  St.  P.  &  O.  R.  Co.,  106  Fed.  in  law  in  cases  of  writs  of  error.  Rev. 
586,  45  C.  C.  A.  474,  construing  §  Stat.,  §  1012.  There  shall  be  an- 
7  of  act  creating  Circuit  Courts  of  nexed  to  and  returned  with  any  writ 
Appeals  (26  Stat.  828)  as  amended  of  error  for  the  removal  of  a  cause, 
by  Act  of  Feb.  18,  1895  (28  Stat.  at  the  day  and  place  therein  men- 
666)  and  Act  of  June  6,  1900  (31  tioned,  an  authenticated  transcript  of 
Stat.  1899-1900,  p.  660).  the  record,  an  assignment  of  errors, 

59.  Act.  Cong.  June  6,  1900,  c.  and  a  prayer  for  reversal,  with  a  ci- 
803,  31  Stat.  660  (U.  S.  Comp.  St.  tation  to  the  adverse  party.  Rev. 
1901,  p.  551),  amending  Court  of  Ap-  Stat.,  §  997.  Our  rule  11  (47  Fed. 
peals  Act,  §  7.  6),  based  on  these  provisions  of  the 

60.  Bailey  v.  Willeford,  131  Fed.  statute,  requires  the  plaintiff  in  error 
242,  66  C.  C.  A.  229.  or  appellant  to  file  with  the  clerk  be- 

61.  Herrick  v.  Cutcheon,  55  Fed.  6.  low,  with  his  petition  for  writ  of  error 

62.  Dufour  v.  Lang,  54  Fed.  913,  or  appeal,  an  assignment  of  errors, 
per  McCormick,  J.:  "Appeals  from  which  shall  set  out  separately  and 
the  Circuit  Courts  shall  be  subject  to  particularly  each  error  asserted  and 
the  same  rules,  regulations,  and  re-  intended  to  be  urged.  The  first  clause 

604 


Appeals. 


398 


§  398.  Reversals  by  Federal  Circuit  Court  of  Appeals The 

Circuit  Court  of  Appeals  has  the  power  to  reverse  an  interlocutory 
order  granting  or  continuing  a  temporary  injunction,  but  will 
not  exercise  this  power  unless  it  is  clearly  shown  that  the  injunc- 
tion was  improvidently  granted  and  is  hurtful  to  the  appellant.63 
The  order  of  the  United  States  Circuit  Court,  granting  a  pre- 
liminary injunction  to  close  the  World's  Fair  on  Sundays,  was 
reversed  by  the  Circuit  Court  of  Appeals,  on  the  ground  that  the 
order  had  been  made  by  the  lower  court  in  the  "  exercise  of  an 
unregulated  discretion,"  as  it.  had  not  been  shown  that  opening 


of  subdivision  5  of  rule  24  (Id.  11), 
provides  that  when,  according  to  this 
rule,  a  plaintiff  in  error  or  an  ap- 
pellant is  in  default,  the  case  may  be 
dismissed  on  motion.  The  counsel  for 
the  appellants  insists  that  this  rule 
can  never  have  been  intended  to  re- 
late to  any  appeals  except  appeals 
from  admiralty  causes.  There  is, 
however,  nothing  in  the  language  of 
the  statutes  or  of  our  rules,  or  in  the 
nature  of  the  case,  restricting  the  ap- 
plication of  the  rule  to  appeals  in 
admiralty.  The  purpose  of  the  rule 
is  twofold:  to  advise  the  adversary 
as  to  what  he  is  to  defend,  and  to  aid 
the  Appellate  Court  in  reviewing  the 
case.  It  is  so  far  not  jurisdictional 
that  the  court  may,  in  a  proper  case, 
entertain  the  appeal,  and  notice  a 
plain  error  not  assigned  or  specified; 
but  we  consider  the  better  practice  is 
to  require  a  compliance  with  the  rule 
in  all  cases  of  appeals  in  equity,  as 
well  as  of  writs  of  error  in  cases  at 
law.  We  conclude,  therefore,  that 
the  motion  to  dismiss  this  appeal  is 
well  taken,  and  should  be  granted, 
and  it  is  so  ordered." 

63.  Workingmen's^  etc.,  Council  v. 
United  States,  57  Fed.  85,  per  Mc- 
Cormick,  J. :  "  The  Circuit  Court 
exercised  just  caution,  and  gave  de- 


fendants ample  time  to  show  cause 
why  the  preliminary  injunction 
sought  should  not  be  granted.  .  .  . 
The  summary  of  the  proof  made  in 
the  opinion  of  the  judge  of  the  Cir- 
cuit Court  is  fairly  supported  by  the 
record,  and  shows  that  there  was 
proof  tending  to  support  the  allega- 
tions of  the  bill.  The  providing  by 
law  for  an  appeal  from  an  interlocu- 
tory order  granting  an  injunction  cer- 
tainly clothes  the  Court  of  Appeals 
with  the  power  and  charges  it  with 
the  duty  of  reviewing,  and  in  a  proper 
case,  reversing  the  action  of  the  trial 
court  in  granting  such  injunctions; 
but  as  to  issues  of  fact,  presented  as 
they  only  can  be  presented  in  such 
cases,  the  findings  of  the  facts  ex- 
pressed or  implied  in  the  action  of 
the  trial  court,  should  be  given  due 
weight,  and  its  action  so  far  as  it 
rests  on,  or  is  affected  by  the  state  of 
facts  proved,  should  not  be  reversed 
unless  it  is  made  clearly  to  appear 
that  it  was  improvident  and  hurtful 
to  the  appellant.  In  this  case,  the 
most  that  can  be  urged  against  the 
order  having  relation  to  the  state  of 
the  proof,  is  that  it  was  unnecessary. 
It  only  enjoined  the  appellants  from 
doing,  pending  this  suit,  what  the 
statute  forbids  and  provides  may  be 


605 


§,§  399  400 


Appeals. 


the  Fair  on  Sundays  would  cause  irreparable  injury  to  the  prop- 
erty of  the  United  States.64 

§  399.  Joinder  of  joint  defendants  in  writ  of  error;  Federal 
rule. — In  accordance  with  the  rule  that  joint  defendants  wishing 
to  have  a  judgment  against  them  reviewed  by  the  Circuit  Court  of 
Appeals,  must  all  join  in  the  writ  of  error,  or  that  there  must  be 
a  summons  and  severance  or  equivalent  proceedings  to  entitle  any 
of  them  to  proceed  alone,  the  sureties  upon  a  supersedeas  bond, 
after  affirmance  by  the  appellate  court,  cannot  have  the  judgment 
thereafter  entered  against  them  in  the  trial  court  reviewed  on  writ 
of  error,  without  joining  the  principal  and  all  other  defendants 
in  the  writ,  or  obtaining  the  right  to  proceed  alone  in  the  manner 
above  mentioned;  and  if  such  joinder  of  defendants  is  not  had, 
the  writ  of  error  will  be  dismissed  for  non-joinder.65 

§  400.  Effect  of  appeal ;  Federal  rule ;  stay  pending  appeal. — 
The  rule  in  the  Federal  courts  is  that  an  appeal  from  a  decree 


prevented  by  injunction.  On  this  ap- 
peal from  an  interlocutory  order 
which  we  affirm}  we  deem  it  unneces- 
sary to  anticipate  the  further  pro- 
gress and  final  hearing  of  this  case 
by  an  expression  of  our  views  as  to  the 
full  scope  and  sound  construction  of 
this  recent  and  inportant  statute." 

64.  World's  etc.,  Exposition  v. 
United  States,  56  Fed.  654. 

65.  Humes  v.  Third  Nat.  Bank,  54 
Fed.  917,  per  McCormick,  J.:  "We 
are  of  opinion  that  the  motion  to  dis- 
miss the  writ  of  error  is  well  taken. 
It  is  apparent  on  the  face  of  the  rec- 
ord that  the  judgment  of  the  court 
below  was  a  joint  judgment  against 
E.  C.  Gordon,  C.  C.  Harris,  and  Mil- 
ton Humes.  It  is  immaterial  that 
Gordon  was  principal  and  the  others 
sureties.  If  a  writ  of  error  could 
bring  that  judgment  to  this  court — a 
question    not    free    from    doubt — the 


long-settled  practice  requires  that  all 
of  the  joint  defendants  should  join 
in  the  writ,  or  that  there  should  have 
been  a  summons  and  severance,  or 
equivalent  proceedings,  to  entitle  the 
plaintiffs  in  error  to  proceed  alone, 
and  the  successful  party  below  pro- 
ceed to  enforce  his  judgment  against 
the  defendant  who  does  not  desire  to 
have  it  reviewed,  and  this  court  not 
to  be  required  to  decide  a  second  time 
the  same  question  on  the  same  record. 
The  following  cases  amply  illustrate 
and  fully  settle  the  doctrine  and 
practice  here  stated:  Owings  v. 
Kincannon,  7  Pet.  399,  8  L.  Ed.  727 ; 
Todd  v.  Daniel,  16  Pet.  521,  10  L.  Ed. 
1054;  Williams  v.  Bank,  11  Wheat. 
414,  6  L.  Ed.  508;  Mussina  v.  Ca- 
vazos,  6  Wall.  355,  18  L.  Ed.  810; 
Masterson  v.  Herndon,  10  Wall.  416, 
19  L.  Ed.  953;  Feibelman  v.  Pack- 
ard, 108  U.  S.  14,  1  S  Ct.  138,  27  L. 


606 


Appeals. 


4.00 


granting  or  dissolving  an  injunction  does  not  disturb  the  operative 
effect  of  such  decree.66  As  an  injunction  which  has  been  dissolved 
cannot  be  revived  by  a  mere  appeal  without  a  new  exercise  of 
judicial  power,  a  fortiori  the  mere  prosecution  of  an  appeal  cannot 
operate  as  an  injunction  where  none  has  been  granted.67  The 
judge,  however,  who  hears  the  case  in  the  court  below  may,  on 
allowing  an  appeal  from  a  final  decree,  granting  or  dissolving  an 
injunction,  suspend  or  modify  the  injunction  pending  appeal  on 
such  terms  as  he  may  consider  proper;  and  doubtless  the  Supremo 
Federal  Court  has  the  same  power  while  an  appeal  is  pending 
before  it.68  And  where  an  order  not  only  grants  an  appeal  but  "  a 
supersedeas  is  granted  to  the  order  "  which  dissolved  the  injunction, 
the  order  to  take  effect  when  the  bond  has  been  approved,  the  order 
ipso  facto,  upon  the  giving  of  the  required  bond  reinstates  the 


Ed.  634;  Downing  v.  McCartney,  ap- 
pendix to  131  U.  S.  98,  19  L.  Ed.  757 ; 
Mason  v.  U.  S.,  130  U.  S.  581,  10  S. 
Ct.  1062,  34  L.  Ed.  545,  and  Hardee 
v.  Wilson  (decided  at  the  October 
Term.  1892),  146  U.  S.  179,  13  S.  Ct. 
39,  36  L.  Ed.  193 — in  which  all  of 
the  foregoing  cases  are  cited  and  dis- 
cussed." 

66.  Leonard  v.  Ozark  Land  Co., 
115  U.  S.  465,  468,  6  S.  Ct.  127,  29 
L.  Ed.  445,  per  Waite,  C.  J.:  "The 
injunction  ordered  by  the  final  de- 
cree was  not  vacated  by  the  appeal. 
Slaughter-House  Cases,  10  Wall.  (U. 
S.)  273,  297,19  L.  Ed.  915;  Hovey 
v.  McDonald.  109  U.  S.  150,  161,  3  S. 
Ct.  136,  27  L.  Ed.  888.  It  is  true 
that  in  some  of  the  slaughter-house 
cases  the  appeal  was  from  a  decree 
making  perpetual  a  preliminary  in- 
junction, which  had  been  granted  at 
an  earlier  stage  of  the  case,  but  the 
fact  of  the  preliminary  injunction 
had  nothing  to  do  with  the  decision 
which  was  'that  neither  an  injunc- 
tion or  decree  dissolving  an  injunc- 
tion is  reversed  or  nullified  by  an  ap- 


peal or  writ  of  error  before  the 
cause  is  heard  in  this  court.'  This 
doctrine,  in  the  general  language  here 
stated,  was  distinctly  reaffirmed  in 
Hovey  v.  McDonald,  supra,  and  it 
clearly  refers  to  the  injunction  con- 
tained in  the  decree  appealed  from, 
without  reference  to  whether  that  in- 
junction was  in  perpetuation  of  a 
former  order  to  the  same  effect,  or 
was  then  for  the  first  time  granted. 
The  injunction,  therefore,  which  was 
granted  by  the  final  decree  in  this 
case  is  in  full  force  notwithstanding 
the  appeal." 

67.  Knox  County  v.  Harshman, 
132  U.  S.  14,  10  S.  Ct.  8,  33  L.  Ed. 
249. 

68.  Leonard  v.  Ozark  Land  Co., 
115  U.  S.  465,  6  S.  Ct.  127,  29  L.  Ed. 
445,  per  Waite,  C.  J.:  "This  court 
has,  no  doubt,  the  power  to  modify 
an  injunction  granted  by  a  decree  be- 
low in  advance  of  a  final  hearing  of 
an  appeal  on  its  merits.  An  applica- 
tion to  that  effect  was  made  to  us  at 
the  October  term,  1878,  in  the  case 
of    the    Sandusky   Tool    Co.   v.   Com- 


607 


§401 


Appeals. 


injunction.69  But  in  the  United  States  Circuit.  Court  it  has  been 
decided  that  an  appeal  from  a  decree  granting  an  injunction  does 
not  supersede  such  decree  though  the  requisites  for  a  supersedeas 
are  complied  with.70  An  appeal  does  not  lie  to  the  Federal  Su- 
preme Court  from  an  interlocutory  decree  of  a  Circuit  Court  dis- 
solving an  injunction.71 

§  401.  In  Alabama,  Arkansas. — In  Alabama,  pending  an  ap- 
peal from  an  order  dissolving  an  injunction  the  appellant,  is 
entitled  to  have  the  injunction  reinstated  upon  giving  the  proper 
bond,  and  may  enforce  his  right  by  mandamus.72  In  Arkansas  on 
appeal  from  a  judgment  for  defendants  in  an  action  to  restrain 
the  county  judge  acting  for  the  county  from  paying  over  a  certain 
fund  to  the  other  defendant,  and  for  a  lien  thereon,  it  has  been 
decided  that  plaintiff  is  not  entitled  to  an  order  restraining  such 
payment  pending  the  appeal,  where  the  county  is  solvent,  as,  if 
the  money  is  paid  over  wrongfully,  the  county  will  still  be  liable,73 


stock  (not  reported),  and  finding 
that  such  practice,  if  permitted, 
would  often  involve  an  examination 
of  the  whole  case,  and  take  much 
time,  we  made  the  present  equity  rule 
93,  which  is  as  follows  '  When  an  ap- 
peal from  a  final  decree  in  an  equity 
suit,  granting  or  dissolving  an  in- 
junction, is  allowed  by  a  judge  who 
took  part  in  the  decision  of  the  cause, 
he  may  in  his  discretion  make  an  or- 
der suspending  or  modifying  an  in- 
junction pending  the  appeal  upon 
such  terms.,  as  to  bond,  or  otherwise, 
as  he  may  think  proper.'  Here  the 
judge,  who  heard  the  case,  allowed 
the  appeal,  and  instead  of  suspending 
or  modifying  the  injunction,  he  gave 
special  notice  that,  it  was  to  continue 
in  force,  and  if  the  facts  are  correctly 
stated  in  the  opinion,  it  was  quite 
proper  he  should  do  so." 

Where    a    decree    dissolves    an    in- 
junction, an  order  which  merely  al- 


lows an  appeal  therefrom,  even 
though  a  supersedeas  bond  be  given 
in  due  time,  is  held  not  to  continue 
the  injunction  in  force.  In  such 
cases,  however,  it  is  held  permissible 
for  the  court  or  judge  granting  the 
appeal  to  provide  that  the  injunction 
shall  continue  in  force  pending  the 
appeal.  New  River  Mineral  Co.  v. 
Seeley,  117  Fed.  981. 

69.  New  River  Mineral  Co.  v. 
Seeley,  117  Fed.  981. 

70.  Interstate  Commerce  Commit 
sion  v.  Louisville  &  N.  R.  Co.,  101 
Fed.   146. 

71.  Young  v.  Grundy.  6  Cranch, 
51. 

72.  Ex  parte  Planters',  etc..  Ins. 
Co.,  50  Ala.  390. 

73.  MeFadden  v.  Owens.  54  Ark. 
118.  15  S.  W.  84.  See,  also,  Cham- 
bliss  v.  Reppy,  54  Ark.  539,  16  S. 
W.  571;  Shaul  v.  Ihiprey,  48  Ark. 
331,  3  S.  W.  366. 


608 


'Appeals.  §§  401a,  402 

§  401a.  In  California, — In  California  the  stay  of  proceedings 
provided  for  by  the  Code  pending  appeal  from  a  judgment  is  held 
not  to  operate  to  suspend  the  operation  of  an  injunction  embodied 
in  a  judgment.74  In  other  cases  in  this  State  it  is  decided  that 
where  the  part  of  the  judgment  granting  an  injunction  is  merely 
incidental  to  that  part  of  the  judgment  which  determines  the  other 
issues  between  the  parties,  an  appeal  from  the  final  judgment  in 
such  action  operates  to  suspend  the  injunctive  portion  of  such 
judgment  and  that  the  lower  court  will  be  restrained  by  a  writ  of 
prohibition  from  punishing  a  person  for  a  violation  of  such  in- 
junction.75 

§  402.  In  Florida. — The  Florida  statute  authorizing  appeals 
from  interlocutory  orders  in  chancery,  provides  that  such  appeals 
shall  not  operate  as  a  supersedeas  unless  the  judge  of  the  Circuit 
Court  or  a  justice  of  the  Supreme  Court  shall,  on  an  inspection  of 
the  record,  direct  a  stay  of  proceedings  and  that  no  appeal  shall  of 
itself  operate  as  a  supersedeas  except  upon  the  conditions  now 
prescribed  by  law  on  appeal  from  final  judgments  and  decrees.76 
So  it  is  decided  that  an  appeal  from  an  order  dissolving  an  injunc- 
tion does  not  of  itself  reinstate  an  injunction,  but  an  appeal,  and 
an  order  by  the  Circuit  judge  or  a  justice  of  the  Supreme  Court 
under  the  statute  that  the  appeal  shall  operate  as  a  supersedeas  to 

74.  Rogers  v.  Superior  Court,  126  dered  and  sustained,  and  Maxwell,  J., 
Cal.  183,  58  Pac.  452.  said:     "It  is  enough  on  application 

75.  Mark  v.  Superior  Court,  129  for  supersedeas  in  an  appeal  from  an 
Cal.  1,  61  Pac.  436;  Foster  v.  Su-  interlocutory  order  or  decree  that  the 
perior  Court,  115  Cal.  279,  47  Pac.  judge  should  on  'inspection  of  the 
58;  Stewart  v.  Superior  Court,  100  record'  think  fit  to  order  and  direct 
Cal.  543,  35  Pac.  156,  563.  it.     McClellan,  167,  section  2.     He  is 

76.  McClellan's  Dig.,  p.  167.  §  2;  not  to  satisfy  his  mind  on  litigated 
Jacoby  v.  Shomaker,  26  Fla.  502,  507.  questions,  but  only  to  see  that  there 
7  So.  855.  where  a  supersedeas  of  an  is  an  appeal,  that  it  is  not  frivolous, 
injunction  against  a  liquor  business  and  that  the  state  of  the  case  as  to 
was  denied  pending  appeal  because  its  future  course  is  such  as  to  render 
the  damage  from  the  continuance  of  a  stay  of  proceedings  proper.  This 
the  liquor  business  could  not  be  com-  was  our  meaning  when  in  Saxon  v. 
pensated  for  in  money.  In  Williams  Gamble.  23  Fla.  412,  2  So.  664,  we 
v.  Hilton,  25  Fla.  608.  6  So.  452.  a  said  '  it  is  not  necessary  or  proper 
supersedeas  of  the  injunction  was  or-  for  a  justice,  on  application  for  su- 

fiOO 
30 


§402 


Appeals. 


the  order  appealed  from,  and  a  compliance  with  the  terms  of  the 
supersedeas  order  as  to  giving  bond,  restores  the  injunction.77  In 
this  State  on  an  appeal  from  an  order  of  the  Circuit  Court  denying 
an  injunction  asked  for,  the  Supreme  Court  will  not  grant  a  tem- 
porary injunction  to  operate  pending  the  appeal  unless  it  is  indis- 
pensable to  the  protection  of  the  rights  of  the  party  asking  it. 
Thus,  where  the  injunction  asked  for  is  in  restraint  of  an  action 
at  law,  and  the  facts,  if  sufficient  to  authorize  an  injunction,  also 
constitute  a  good  defense  by  equitable  plea  to  the  action  at  law, 
it  should  be  granted  by  the  appellate  court  to  operate  pending  the 
appeal.78  But  it  is  decided  that  so  long  as  an  appeal  from  an  order 
granting  an  injunction  is   pending,  the  power  of  the  courts  to 


persedeas,  to  consider  the  merits  of 
the  appeal,'  and  this  language  should 
be  modified  to  admit  consideration  of 
the  merits  so  far  as  to  see  whether 
the  appeal  is  frivolous." 

77.  Smith  v.  Whitfield,  38  Fla. 
211,  20  So.  1012. 

McMichael  v.  Eckman,  26  Fla.  43, 
7  So.  3G5.  In  this  case  an  execution 
sale  of  personal  property  was  en- 
joined until  $1,000  wortli  of  personal 
property  should  be  set  aside  for  com- 
plainant as  the  exemption  allowed  the 
head  of  a  family,  the  property 
claimed  as  exempt  to  be  scheduled 
immediately  in  the  manner  directed 
by  law,  and  remain  in  tlie  possession 
of  the  sheriff.  Afterwards  the  in- 
junction was  dissolved  on  motion  of 
defendants,  and,  the  complainant  hav- 
ing appealed  from  the  dissolving 
order,  an  order  was  made  that  the 
appeal  should  operate  as  a  super- 
sedeas on  the  filing  and  approval  of 
a  specified  bond.  It  was  held  that 
the  Supreme  Court  would  not  vacate 
or  modify  the  supersedeas  so  as  to 
permit  a  sale  of  the  entire  property, 
on  the  ground  that  it  was  perishable, 
and  that  the  sheriff,  misunderstand- 
ing the  scope  and  meaning  of  the  su- 


persedeas order,  refused  to  sell  the 
property,  where  it  is  not  shown  that 
the  property  is  perishable  to  the  ex- 
tent that  would  render  the  delay 
fatal  to  the  interests  of  the  parties 
concerned.  Per  Raney,  C.  J. :  "  Al- 
though an  appeal  from  a  decree  dis- 
solving an  injunction  does  not  of  it- 
self under  our  practice  operate  to 
reinstate  the  injunction,  yet,  where 
an  order  is  made  that  the  appeal 
shall  operate  as  a  supersedeas  to  such 
decree,  and  the  terms  of  the  super- 
seding order  as  to  giving  bond  have 
been  complied  with,  we  are  satisfied 
the  injunction  is  thereby  reinstated. 
Authorities  of  great  respectability 
hold  that  the  allowance  of  an  appeal 
by  the  court  will  reinstate  the  in- 
junction. Penrice  v.  Wallis,  37  Miss. 
172;  Yocum  v.  Moore,  4  Bibb  (Ky., 
221;  Turner  v.  Scott,  5  Rand.  (Va.) 
332;  Williams  v.  Pouns,  48  Tex.  141." 
78.  Cohen  v.  U  Engle,  24  Fla.  542, 
5  So.  235.  In  Pasco  v.  Gamble,  15 
Fla.  562,  the  Supreme  Court,  when 
reversing  an  order  of  the  Circuit 
Court  appointing  a  receiver  of  rents 
and  profits,  enjoined  the  defendant  to 
the  bill  of  foreclosure  until  the  fur- 
ther order  of  the  Circuit  Court  from 


C10 


Appeals.  §§  402a,  402b 

enforce  the  injunction,  or  to  punish  as  contempts  acts  in  violation 
of  its  terms,  committed  during  such  time,  is  suspended.79 

§  402a.  In  Georgia;  Illinois. — In  Georgia,  an  appeal  from  an 
order  dissolving  an  injunction  does  not  operate  as  a  supersedeas 
to  keep  the  injunction  in  force,  nor  will  the  appeal  be  heard  until 
after  final  disposition  of  the  cause  in  the  court  below.80  And  where 
a  restraining  order  granted  on  a  rule  to  show  cause  why  an  injunc- 
tion should  not  be  granted  falls  with  the  refusal  of  the  injunction, 
it  is  not  appealable  nor  revived  by  an  appeal  from  the  order  refus- 
ing the  injunction.81  In  Illinois,  if  a  temporary  injunction  is  con- 
tinued until  the  final  hearing  and  is  then  dissolved  and  the  bill 
dismissed,  an  appeal  will  operate  to  suspend  the  decree  dissolving 
the  injunction,  so  as  to  leave  it  still  in  force,  but  if  the  injunction 
was  dissolved  by  an  interlocutory  order  and  the  cause  afterward 
proceeded  to  a  final  hearing,  an  appeal  from  the  final  decree  will 
not  revive  the  injunction,  though  the  appellate  court  will  in  a 
proper  case  revive  it  until  the  appeal  can  be  heard.82 

§  402b.  In  Iowa. — In  Iowa  it  is  decided  the  contention  that  the 
defendant,  by  filing  a  supersedeas  bond  and  appealing  from  the 
order  dissolving  a  temporary  injunction,  can  keep  it  in  force,  is 
without  merit,  since  an  order  dissolving  such  a  writ  is  self-execut- 
ing and  is  not  superseded  by  filing  a  bond.    It  is,  however,  decided 

making  any  disposition  of  the  rents  in  force  by  the  bill  of  exceptions  op- 

and  profits.    The  reversal  was  on  ac-  erating  as  a  supersedeas  when  bond 

count  of  an  error  in  practice  and  the  is    given   under   said   section.      They 

purpose  of  the  injunction  was  to  pre-  are  interlocutory  orders  of  the  chan- 

serve  the  complainant's  rights  till  an  cellor,  which  cease  to  operate  •when 

amendment    of    the    bill    should    be  his  order  sets  them  aside."    See,  also, 

made.  Ogle  v.  Dill,  55   Ind.    130,   where  it 

79.  Powell  v.  Florida  Land  &  I.  was  held  that  the  refusal  of  the 
Co.,  41  Fla.  494,  26  So.  709.  Circuit  Court  to  grant  a  temporary 

80.  Nacoochee  Mining  Co.  v.  Da-  restraining    order    during    the    peu 
vis.   40  Ga.   309.  dency  of  a  suit  for  a  perpetual  in- 

81.  Powell  v.  Parker,  38  Ga.  644,  junction,    was    not   an    interlocutory 
per  Brown,  C.  J.:     "  We  do  not  think  order   from   which   an    appeal   would 
section  4203  of  the  Revised  Code  was  lie  to  the  Supreme  Court, 
intended  to  apply  to  these  restrain-  82.  Bressler    v.    McCune,    56    111. 
ing  orders  or  that  they  are  continued  475.     See  111.  Laws  of   1874,  §  21 ; 

611 


§§  402c,  402d  Appeals. 

in  this  State  that,  under  the  Code83  conferring  on  the  Supreme 
Court  power  to  issue  all  writs  and  processes  necessary  for  the 
exercise  and  enforcement  of  its  appellate  jurisdiction,  the  Supreme 
Court  has  power  to  issue  a  restricting  order  to  prevent  one  party 
to  an  appeal  from  disturbing  the  possession  of  the  adverse  party 
to  the  property  in  litigation  pending  the  appeal.84  In  this  State 
under  a  Code  provision  that  an  injunction  affecting  the  subject 
matter  of  an  action  can  be  granted  only  by  the  court  before  which 
it  is  pending,  an  injunction  restraining  the  taking  possession  of 
land  in  dispute,  after  an  appeal  has  been  taken,  can  be  granted 
only  by  the  appellate  court.85 

§  402c.  In  Louisiana. — In  Louisiana  where  plaintiff  obtains 
and  perfects  a  suspensive  appeal  from  a  judgment  setting  aside  an 
injunction,  it  is  decided  that  the  effect  of  the  appeal  is  to  hold 
matters:  in  abeyance  until  the  rights  of  the  parties  have  been  finally 
passed  upon  on  the  appeal.  In  such  a  case  where  defendant  com- 
mences another  action  pending  the  appeal  he  cannot  claim  in  such 
action  a  counter  injunction  against  the  plaintiff  which  will  have 
the  effect  of  nullifying  the  first  injunction,  though  upon  a  proper 
showing  the  property  in  dispute  may  be  placed  in  the  custody  of 
the  court  and  held  until  the  decision  of  the  case  on  appeal.86 

§  402d.  In  Michigan ;  Minnesota ;  Montana. — In  Michigan  it 
is  decided  that  though  the  effect  of  an  appeal  from  a  decree  grant- 
ing a  permanent  injunction,  is  to  bring  the  cause  into  the  Supreme 
Court  and  to  stay  all  proceedings  at  the  circuit,  its  effect  is  not  to 
dissolve  the  injunction,  and  pending  the  appeal  the  injunction  may 
not  be  ignored.87  In  Minnesota  an  appeal  from  an  order  dissolv- 
ing a  temporary  writ  of  injunction,  if  a  proper  supersedeas  bond 

Cothran's  Ann.  Ed.  Rev.  Sts.   (1891),  86.  State  v.  Deboillon,  113  La.  619, 

p.  709.  37  So.  534. 

83.  §  4109.  See,  also,  as  to  effect  of  a  suspens- 

84.  Manning  v.  Poling,  114  Iowa,  ive  appeal  from  an  order  dissolving 
20,  86  N.  W.  30.  an  injunction,  Hake  v.  Lee,   104  La. 

85.  Hyatt  v.  Clever,  104  Iowa,  338,  146,  28   So.   1004. 

73  X.  W.  831,  construing  Code  1873.  87.  Wilkinson     v.     Dunkley-Will- 

§  3389. 

612 


Appeals.  §  403 

be  given,  operates  to  revive  and  continue  the  writ  in  force  pending 
the  appeal.88  In  Montana  it  is  declared  that  there  is  no  statute 
or  other  law  vesting  power  in  the  Supreme  Court  to  grant  an  order 
modifying  or  vacating  a  perpetual  injunction  pending  appeal  from 
a  judgment  embracing  it.89 

§  403.  In  New  Jersey. — In  New  Jersey  it  is  provided  by  statute 
that  no  appeal  from  an  order  granting  an  injunction  shall  suspend 
or  modify  its  operation  without  an  order  of  the  chancellor  and  that 
a  suspension  or  modification  thereof  shall  extend  only  so  far  as  may 
be  necessary  to  preserve  the  subject  of  the  appeal,  and  shall  not 
in  any  case  be  allowed  to  destroy  the  right  established  or  pro- 
tected by  the  decree  appealed  from.90  So  it  is  decided  that  an 
appeal  in  all  cases  will  have  the  effect  given  to  it  which  shall  be 
necessary  to  preserve  the  subject  to  which  the  appellate  procedure 
relates,  in  such  a  condition  as  will  enable  the  appellate  court  to 
render  an  efficacious  decree  in  the  premises  and  that  for  this  pur- 
pose an  injunction  decree  will  be  suspended  or  continued,  or  a 
previous  injunction  revived,  by  the  act  of  filing  an  appeal,  when- 
ever such  construction  shall  be  necessary  for  the  end  above  stated.91 
And  in  an  early  case  in  this  State  it  is  held  that  on  an  appeal  from 
an  ord<r  of  the  chancellor  dissolving  an  injunction,  the  Court  of 
Errors  and  Appeals  will  sometimes  revive  the  injunction  pending 
the  apreal  either  upon  a  pure  injunction  bill  where  the  whole  mat- 
ter in  controversy  is  the  continuance  of  the  injunction,  and  where 
consequently  the  object  of  the  suit  would  be  defeated  if  the  appel- 
lee were  not  for  the  time  restrained,  or  where  the  revival  of  the 
injunction  by  the  appellate  court  is  necessary  to  prevent  irreparable 

iams  Co.,  141  Mich.  409,  104  N.  W.  which   case  the  court  refused   under 

772.  this  statute  to  suspend,  pending  ap- 

88.  State  v.  District  Court,  78  peal,  an  injunction  granted  to  re- 
Minn.  464,  81  N.  W.  323;  citing  and  strain  defendant  from  interfering 
following  State  v.  Duluth  St.  Ry.  Co.,  with  a  strong  hand  to  prevent  com- 
47  Minn.  369.  plainant    from    constructing    certain 

89.  Maloney  v.  King,  26  Mont.  492,  improvements  under  a  lease. 

68   Pac.    1014.  91.  Pennsylvania  R.  R.  Co.  v.  Na- 

90.  Hoboken  &,  Manhattan  R.  R.  tional  Dry  Docks  &  N.  J.  C.  R.  Co., 
Co.  v.  Jersey  City,  Hoboken  &  P.  R.       54  N.  J.  Eq.  647,  35  Atl.  433. 

Co.,  70  N.  J.  Eq.  123,  62  Atl.  539,  in 

613 


§403 


Appeals. 


mischief  to  the  appellant.92  An  injunction  may  also  be  continued 
pending  an  appeal  by  complainant  from  a  decree  dismissing  the 
bill,  and  the  enforcement  of  the  decree  should  be  stayed  when  its 
enforcement  pending  the  appeal  would  render  it  impossible  to  set 
the  appellant  right  again  if  successful  in  his  appeal.93  But  where, 
on  an  application  for  a  preliminary  injunction,  an  order  to  show 
cause  is  granted,  with  an  ad  interim  injunction  order,  and  the 
court  subsequently  refuses  an  injunction,  on  the  ground  that  the 
law  on  which  complainant's  right  depends  is  unsettled,  the  injunc- 
tion order  will  not  be  continued  in  force  pending  the  appeal.94 
For  to  continue  it  in  force  in  such  a  case  would  put  it  in  the  com- 
plainant's power  to  get  his  injunction  against  the  conviction  of 
the  chancellor  that  he  was  not  entitled  to  it.95 


92.  Van  Walkenburgh  v.  Rahway 
Bank,  8  N.  J.  Eq.   725. 

93.  Jewett  v.  Dringer,  29  N.  J. 
Eq.  19!).  In  this  case  the  defendant 
was  enjoined  from  disposing  of  the 
property  in  question  on  the  ground 
that  he  had  fraudulently  obtained  it 
from  complainant.  On  appeal  from 
the  decree  dismissing  the  bill,  the  in- 
junction was  continued  because  other- 
wise the  judgment  creditors  would 
at  once  seize  and  sell  it  .  .  .  the 
vice  chancellor  said:  "Against  a  re- 
sult so  disastrous  and  reproachful  to 
the  administration  of  justice  the  com- 
plainant is  entitled  to  protection. 
The  injunction  will  be  continued  for 
the  present,  but  the  defendant  shall 
be  at  liberty  at  any  time  during  the 
pendency  of  the  appeal  to  have  it  dis- 
solved and  the  property  restored  to 
him,  on  giving  a  bond  to  the  com- 
plainant in  the  sum  of  $20,000  with 
sufficient  surety  conditioned  that  if 
plaintiff  is  successful  on  the  appeal, 
he  will  pay  him  any  sum  he  may  re- 
cover under  or  equal  to  the  sum 
named  in  the  bond."  As  to  court's 
power    to    continue    the    injunction 


pending  the  appeal  it  cited  Chegary 
v.  Scofield,  5  N.  J.  Eq.  525;  Ryer- 
son  v.  Boorman,  7  N.  J.  Eq.  040; 
Schenck  v.  Conover,  13  N.  J.  Eq.  31. 

94.  Delaware,  L.  &  W.  R.  Co.  v. 
Central  Stock- Yard  &  Transit  Co.,  43 
N.  J.  Eq.  77,   10  Atl.  G02. 

95.  Central  R.  Co.  v.  Standard  Oil 
Co.,  33  N.  J.  Eq.  372.  In  Chegary  v. 
Scofield,  5  N.  J.  Eq.  525,  it  was  held 
that  an  appeal  lies  from  an  order 
dissolving  an  injunction,  and  that 
though  the  appeal  does  not  of  itself 
stay  proceedings  on  the  order  ap- 
pealed from,  yet,  after  appeal  the 
Court  of  Appeals  may  stay  proceed- 
ings on  the  order  dissolving  the  in- 
junction. In  Doughty  v.  Somerville, 
etc.,  R.  Co.,  7  JM.  J.  Eq.  629,  on  ap- 
peal from  an  order  dissolving  an  in- 
junction, the  chancellor  granted  an 
order  staying  the  proceeding  to  re- 
strain which  the  injunction  had 
issued  until  the  next  sitting  of  the 
Court  of  Errors  and  Appeals.  A  mo- 
tion was  made  in  the  latter  court  at 
its  next  sitting  for  an  order  extend- 
ing the  stay  until  the  hearing  on  the 
appeal.     It  was  held  that  this  court 


614 


Appeals. 


§404 


§404.  In  New  Jersey,  continued. — Where  an  injunction  has 
been  issued  within  ten  days  after  the  decree  authorizing  it,  an 
appeal  from  such  decree  within  the  ten  days  suspends  the  opera- 
tion of  the  writ,  ipso  facto,  and  it  is  unnecessary  to  apply  to  the 
court  to  dissolve  th°  injunction,  or  to  stay  the  issuance  of  process 
on  the  decree.  The  complainant  may,  however,  come  in  and  show 
good  cause  why  the  injunction  should  not  be  stayed,  and  then  the 
court  may  feel  called  upon  in  the  exercise  of  its  discretion  to 
award  and  enforce  the  injunction,  notwithstanding  the  appeal.9* 
It  would  seem  that  in  England,  and  in  New  York  under  the  old 
chancery  regime,  and  in  New  Jersey  under  present  equity  practice 
and  rules,  whether  the  complainant  should  be  permitted  to  enforce 
his  decree  awarding  an  injunction,  notwithstanding  the  defend- 
ant's appeal  from  it,  rests  in  the  discretion  of  the  court.*7 


had  tlie  power  to  make  such  an  order 
but  that  the  power  rested  in  the 
sound  discretion  of  the  court. 

96.  Osborne  v.  Williams,  40  N.  J. 
Eq.  41)0,  4  Atl.  439,  per  Bird,  V.  C: 
"Clearly  under  the  rule  (149).  and 
the  case  of  Schenck  v.  Conover,  13  N. 
J.  Eq.  31,  the  complainant  was  not 
entitled  to  his  writ  at  the  time  it 
was  issued.  It  seems  to  me  just  as 
clear  that  the  filing  of  defendant's 
notice  of  appeal  within  the  ten  days 
stays  the  writ  of  execution  until  the 
further  order  of  this  court." 

97.  Schenck  v.  Conover.  13  N.  J. 
Eq.  31.  per  Green,  Ch.:  "The  appli- 
cation is  to  the  sound  discretion  of 
the  court.  By  the  practice  of  the 
English  court  of  equity,  as  well  as 
by  the  practice  of  this  court,  so  far 
as  regulated  by  statute,  an  appeal 
from  a  decree  in  equity,  either  inter- 
locutory or  final,  does  not  stay  pro- 
ceedings in  the  court  below  or  pre- 
vent the  issuing  of  process  without  a 
special  order  for  that  purpose.  Hu- 
guenin  v.  Bnseley,  15  Ves.  180,  184; 
Way  v.  Foy,  18  Ves.  452;  Waldo 
v.    Caley,     16  Ves.    206;    Wilan    v. 


Wilan,  16  Ves.  216.  By  the  New 
York  practice,  as  it  existed  at  and 
prior  to  the  time  of  Chancellor  Kent, 
an  appeal  in  the  first  instance  oper- 
ates to  stay  proceedings  on  the  point 
appealed  from;  and  if  the  party 
wishes  to  proceed,  notwithstanding 
the  appeal,  he  must  make  applica- 
tion to  the  chancellor  for  leave  to 
proceed.  Green  v.  Winter,  1  Johns. 
Ch.  77;  Messonier  v.  Kauman,  3 
Johns.  Ch.  66.  By  either  practice, 
whether  the  party  shall  be  permitted 
to  proceed,  notwithstanding  the  ap- 
peal, rests  in  the  discretion  of  the 
court.  We  follow  the  English  prac- 
tice, except  so  far  as  it  may  be  mod- 
ified by  statute,  or  by  rule  or  estab- 
lished practice  in  this  court.  West 
v.  Paige,  9  N.  J.  Eq.  203.  Independ- 
ent of  rule  20,  §  2,  of  this  court,  the 
complainant  would  have  been  en- 
titled to  his  execution,  as  of  course 
at  any  time  after  final  decree,  not- 
withstanding the  appeal.  By  the  rule, 
if  the  appeal  be  filed  within  ten  days 
after  final  decree,  it  prevents  the 
issue  of  process  without  a  special 
order  for  that  purpose.    If  the  appeal 


615 


§  405  Appeals. 

§  405.  In  New  York. — In  New  York  it  is  declared  that  where 
the  plaintiff  has  obtained  the  injunction  which  the  action  is 
broughi;  to  secure,  the  court,  on  appeal,  in  a  proper  case,  may 
suspend  its  operation ;  but  where  the  plaintiff  has  been  defeated  in 
his  action  and  in  maintaining  his  injunction,  and  it  has  been  dis- 
solved, there  is  no  power  in  the  court  to  revive  it  pending  an 
appeal.98  And  in  this  case  it  also  decided  that  upon  appeal  from 
the  judgment  denying  the  relief  sought  and  giving  costs  to  defend- 
ant, the  plaintiff  on  giving  the  proper  undertakings  provided  for 
by  Code,"  is  entitled  to  a  stay  of  execution  pending  appeal,  and 
that  that  is  the  only  relief  pending  appeal  which  the  plaintiff  can 
have.1  So  an  appeal  from  an  order  granting  an  interlocutory  in- 
junction does  not  stay  its  operation  so  as  to  justify  defendant  in 
disobeying  it.2  And  an  appeal  from  an  order  dissolving  an  injunc- 
tion does  not  revive  or  reinstate  it.3  In  an  early  case  in  this  State 
it  was  held  that  on  appeal  from  an  order  in  chancery  dissolving  an 
injunction,  the  chancellor  might,  where  there  was  a  probable  cause 
for  appealing,  restrain  the  defendant  in  relation  to  the  subject 
matter  of  the  original   injunction  until  the  complainant  had  a 

be    not   filed   within   that   time,    the  Where   an   order  granting   an 

execution  may  issue,  and  proceedings  injunction  is  affirmed  by  the  gen- 

thereon  will  not  be  stayed  except  for  eral  term  of  the  New  YorK  Supreme 

good  cause  in  the  discretion  of  the  Court,  the   special  term   has   no  au- 

eourt.     If  the  court,  in  the  exercise  thority   to  suspend  the  operation  of 

of   this   discretion,   see  that   in   case  the  injunction  pending  an  appeal  to 

the    decree    should    be    reversed,    the  the  Court  of  Appeals,  so  as  to  allow 

party  cannot  be  set  right  again— if  defendant  to  do  the  prohibited  acts 

the   complainant   proceeas  to  a   sale  during   such    time.      Genet    v.    Dela- 

under     his     execution— there     is     a  ware  &  H.  Canal  Co.,  4  N.  Y.  Supp. 

strong  reason   for   a   stay  of  execu-  633,  56  N.  Y.  Super.  Ct.  290. 

tion.     If  on  the  other  hand  the  stay  99.  Code  Civ.  Proc,  §§  1326,  1327. 

of  execution  is   unnecessary  to   pro-  1.  Carpenter    v.    Fisher,    18    App. 

tect  the  rights  of  the  appellant  under  Div.   (N.  Y.)   561,  46  N.  Y.  Supp.  5. 

the  appeal,  and  must  operate  preju-  2.  Power  v.  Athens,    19  Hun    (N. 

dicially  to  the  complainant,  the  court  Y.),  165;   Stone  v.  Carlan,  2  Sandf. 

ought  not  to  interfere."  (N.  Y.)    738.     This  was  the  rule  in 

98.  Carpenter  v.   Fisher,   18  App.  the  former  court  of  chancery.     Hart 

Div.  (N.  Y.)  561,  46  N.  Y.  Supp.  5.  v.    Albany,    3    Paige    (N.    Y.),    381. 

See,  also,  Spears  v.  Mathews,  66  N.  Compare  Green  v.  Winter,   1   Johns. 

Y.    127;    Fellows    v.    Heermans,    13  Ch.  (N.  Y.)   77. 

Abb.  Pr.   (N.  S.)   1.  3.  Hoyt  v    Gel8ton,  13  Johns.   (N. 

616 


Appeals. 


406 


reasonable  time  to  have  his  appeal  heard  before  the  appellate 
court.4  As  a  condition  of  staying  the  enforcement  of  a  final  in- 
junction pending  appeal,  it  is  improper  to  require  an  undertaking 
to  pay  liquidated  damages  in  case  of  affirmance,  but  it  should  be 
conditioned  to  pay  such  damages  as  may  be  sustained  by  plaintiff 
by  reason  of  defendant's  continuing,  during  the  pendency  of  the 
appeal,  the  acts  enjoined.5 


§406.  In  North  Carolina;  Ohio. — In  North  Carolina  it  is 
decided  that  an  appeal  from  an  order  dismissing  a  temporary  in- 
junction does  not  continue  the  injunction.6  In  Ohio,  an  appeal 
from  an  interlocutory  order  dissolving  an  injunction  suspends  the 
effect  of  the  order  so  that  the  injunction  remains  in  force.7 


Y.)  139;  Wood  v.  Dwight,  7  Johns. 
Ch.  (N.  Y.)  295;  Jewett  v.  Albany 
City  Bank,  Clarke  Ch.  (N.  Y.)  59. 
See,  also,  Hart  v.  Albany,  3  Paige 
(N.   Y.),  381. 

4.  Hart  v.  Albany,  3  Paige  (N. 
Y.),  381.  In  order,  under  the  chan- 
cery practice,  to  reinstate  an  injunc- 
tion pending  an  appeal  from  an  order 
dissolving  it.  a  case  had  to  be  made 
showing  something  like  irreparable 
injury  if  not  allowed.  Coster  v.  Gris- 
wold,  4  Edw.  Ch.  (N.  Y.)  364.  See 
Graves  v.  Maguire,  6  Paige  (N.  Y.), 
381. 

5.  Pach  v.  Geoffrey  (Sup.),  19  N. 
Y.  Supp.  583,  per  Patterson,  J.: 
"  The  order  made  etaying  proceedings 
on  the  appeal  was  within  the  dis- 
cretion of  the  judge  to  whom  the  ap- 
plication was  made,  and  we  see  no 
reason  for  disturbing  that  order,  so 
far  as  the  stay  is  concerned.  But 
the  conditions  imposed  we  regard  as 
onerous  in  the  extreme.  There  was 
nothing  presented  as  reliable  proof 
which  justified  fixing  the  amount  of 
the  undertaking  to  be  given  at  $15,- 
000,  or  establishing  that  amount  as 
liquidated    damages.      All   that  ap- 


pears is  a  statement  in  the  affi- 
davit of  the  plaintiff's  attorney, 
that  plaintiff  has  informed  your  de- 
ponent that  the  expenses  of  this  liti- 
gation have  amounted  to  $5,000.  .  .  . 
This  is  perfunctory  swearing,  and 
must  be  discouraged.  There  was 
nothing  before  the  court  to  justify 
such  an  undertaking,  nor  is  it  proper 
on  such  a  motion  to  require  that  the 
undertaking  shall  be  for  liquidated 
damages.  It  should  be  conditioned 
that  the  defendants  will  pay  to  plain- 
tiffs such  damages  as  may  be  sus- 
tained by  plaintiffs  by  reason  of  the 
defendant's  continuing  during  the 
pendency  of  the  appeal  the  acts  en- 
joined by  the  decree." 

6.  Reyburn  v.  Sawyer,  128  N.  C. 
8,  37  S.  E.  954. 

See,  also,  Green  v.  Griffin,  95  N. 
C.  50;  McRae  v.  Com'rs,  74  N.  C. 
415;  Coates  v.  Wilkes,  94  N.  C.  174. 
As  to  a  stay  pending  an  appeal  and 
its  effect,  the  court  in  Green  v.  Grif- 
fin, supra,  cites  Sixth  Ave.  R.  Co.  v. 
Gilbert  El.  R.  Co.,  71  N.  Y.  430; 
Fremont  v.  Mining  Co.,  7  Cal.  130; 
Yocum  v.  Moore,  4  Bibb.    (Ky.)   221. 

7.  Pittsburg,  etc.,  R.  Co.  v.  Hurd, 


617 


§§  406a,  406b  Appeals. 

§  406a.  In  Texas. — A  restraining  order  "  pending  "  a  hearing 
to  show  cause  why  a  permanent  injunction  should  not  issue  expires 
by  its  own  limitation  when  the  hearing  is  had  and  the  injunction 
refused  and  an  appeal  from  such  a  judgment  does  not  continue 
the  restraining  order  in  force  during  its  pendency.8 

§  406b.  In  Washington. — In  Washington  an  order  granting  a 
temporary  injunction  cannot  be  suspenaed  by  an  appeal  therefrom 
as  the  statutory  provisions  authorizing  the  filing  of  a  supersedeas 
bond9  have  no  application  to  orders  granting  injunctive  relief.10 
In  a  later  case  in  Washington  it  is  decided  that  the  superior  courts 
exercising  general  equity  jurisdiction,  have  all  the  powers  of  the 
English  chancery  court,  and  have  inherent  power  to  suspend  the 
effect  of  a  prohibitory  injunction  pending  appeal.11  In  this  case 
it  is  also  decided  that  the  provision  of  the  Code12  that  where  a 
final  judgment  shall  be  rendered  by  any  superior  court  in  a  cause 
where  a  temporary  injunction  has  been  granted,  and  the 
party  at  whose  instance  such  injunction  was  granted  shall 
appeal,  such  injunction  shall  remain  in  force  pending  the 
appeal,  does  not  affect  the  inherent  power  of  the  court, 
to  suspend  the  effect  of  a  perpetual  injunction  pending 
appeal  by  the  party  against  whom  the  same  was  granted.13  But 
where  an  order  is  made  requiring  the  adverse  party  to  show  cause 
on  a  day  certain  why  a  temporary  injunction  should  not  be  granted, 
and  in  the  meantime  he  is  restrained  by  an  emergency  restraining 
order,  and  before  hearing  upon  the  application  for  the  temporary 
injunction  the  cause  is  dismissed  by  the  court,  the  restraining 
order  cannot  be  kept  in  force  pending  an  appeal  from  the  judg- 
ment of  dismissal,  for  if  it  could  the  moving  party  would  have  the 
power,  against  the  will  of  the  court,  to  keep  in  force  indefinitely  an 
order  which  was  intended  to  remain  in  force  only  until  regular 

17  Ohio  St.   144;  Teaff  v.  Hewitt.  1  10.  State   v.    Stallcup,    15    Wash. 

Ohio  St.  519;  Ludlow  v.  Kidd,  3  Ohio,       263,  46  Pac.  2ol. 

547-  11.  State    v.    Superior    Court,    43 

8.  Rising   v.    Thompson,  96   Tex.       Wash.  225,  h6  Pac.  632. 
154.  71   S.  W.   14.  12.  Bal.  Code,  §  6507. 

9.  Laws  1893,  p.   119,  §§  6,  7.  13.  State    v.    Superior    Court,    43 

Wash.  225,  86  Pac.  632. 

618 


Appeals.  §§406c,  406d,  407 

action  of  the  court  could  be  had  on  the  application  for  the  injunc- 
tion.14 

§  40Gc.  In  West  Virginia ;  Wisconsin — In  West  Virginia  it  is 
declared  that  when  once  the  injunction  ceases  by  reason  of  its  dis- 
solution it  is  gone,  end  mere  appeal  does  not  restore  it  unless  some 
act  or  process  staying  or  superseding  the  act  of  dissolution  keeps 
the  injunction  alive.15  But  an  appeal  and  supersedeas  to  a  decree 
or  order  dissolving  an  injunction  keeps  it  in  force  pending  the 
appeal,  and  the  doing  of  acts  prohibited  by  the  injunction  consti- 
tutes contempt.16  In  Wisconsin,  the  court  of  last  resort  is  deemed 
to  have  inherent  power  to  stay  proceedings  in  any  matter  appealed 
to  it.17 

§  406d.  In  England. — There  was  a  time  in  England  when  the 
mere  presenting  of  an  appeal  to  the  House  of  Lords  suspended, 
until  the  decision  of  the  appeal,  the  whole  jurisdiction  of  the 
chancellor.18  In  1772  it  was  held  that  the  chancellor's  jurisdiction 
was  suspended  only  as  to  the  matter  appealed  from  ;19  and  in  1807 
the  lords  decided  that  an  appeal  did  not  operate  as  a  stay,  even  on 
the  point  appealed  from,  without  an  express  order  of  the  appellate 
court,  or  unless,  the  chancellor  thought  proper  to  suspend  the  pro- 
ceedings wholly  or  in  part,  pending  the  appeal.20 

§  407.  Appeals  from  decree  dismissing  bill. — When  an  appeal 
is  taken  from  a  final  decree  or  order  dismissing  a  bill  for  injunc- 
tion, the  inferior  court  has  no  power  over  the  cause  and  cannot 

14.  State  v.  Lichtenberg,  4  Wash.  giving  proper  security;  and  this  ap- 
St.  407,  30  Pac.  716.  plies  as  well  to  an  appeal   from  an 

15.  State  v.  Harness,  42  W.  Va.  order  refusing  to  vacate  a  judgment 
414,  26  S.  E.  270.  on  default  as  to  an  appeal  from  the 

16.  State  v.   Harness,   42  W.  Va.  judgment. 

414,  26  S.  E.  270.  18.  Hart  v.  Albany,  3  Paige,  381, 

17.  Levy  v.  Goldberg,  40  Wis.  308,       383. 

where  it  was  held  to  be  the  general  19.  Lord  Pomfret  v.    Smith,    Pal- 
policy  of  the  law  to  allow  a  defendant  mer's  Pr.  H.  of  L.  9. 
to  stay  proceedings  under  a  decision           20.  Burke  v.  Browne,  15  Ves.  184; 
of  an  inferior  tribunal  against  him,  Huguenin   v.    Baseley,    15   Ves.    180; 
from  which  he  has  appealed,  on  his  Warden,  etc.,  v.  Morris,  9  Ves.  316. 

619 


§  408  Appeals. 

grant  an  injunction  therein,  pending  the  appeal.  Thus,  where  an 
injunction  against  working  a  mine,  pending  a  suit  in  equity,  has 
been  dissolved  by  decree  upon  final  hearing,  the  bill  dismissed  and 
an  appeal  taken  in  such  form  as  to  operate  as  a  supersedeas,  the 
lower  court  cannot  thereafter  restrain  the  successful  party  from 
working  the  mine,  pending  the  appeal.21  It  seems  that  the  foregoing 
rule  would  not  apply  where  the  chancellor  had  directed  a  modified 
dismissal  of  the  bill,  instead  of  dismissing  it  absolutely.22  In  Ala- 
bama, when  a  bill  is  dismissed  by  the  chancellor  and  an  injunction 
granted  under  it  is  dissolved,  it  is  his  duty  to  prescribe  the  penalty 
and  condition  of  the  appeal  bond,  if  the  complainant  should  desire 
to  take  an  appeal,  and  to  have  the  injunction  restored,  pending  the 
appeal,  and  if  the  chancellor  refuses  to  do  so  a  mandamus  may  be 
awarded  to  compel  him.23 

§408.  Objections  barred  on  appeal. — An  objection  by  a  de- 
fendant in  an  action  for  an  injunction,  that  the  facts  alleged  in 
the  complaint  are  not  sufficient  to  confer  jurisdiction  upon  the 
courts  to  grant  the  relief  sought,  when  not  raised  by  answer  or 
presented  at  the  trial,  may  not  be  raised  on  appeal.24  Where  plain- 
tiff, in  his  complaint  and  upon  the  trial,  asks  only  for  equitable 
relief,  and  fails  to  get  it,  he  cannot  complain,  on  appeal,  because 
the  action  was  not  retained  so  as  to  award  him  legal  relief  in 
damages.25  After  a  defendant  has  answered  a  bill  for  an  injunc- 
tion and  submitted  himself  to  the  jurisdiction  of  the  court  without 

91.  Eureka,   etc.,    Mining   Co.    v.  original    jurisdiction,     without    any 

Richmond  Min.   Co.,  5   Sawyer,   121.  suit   pending   in   which    it   could  be 

per    Sawyer,    J.:      "There    was    no  issued.     Galloway  v.   Mayor,   etc.,  3 

longer  any  case  pending  in  which  any  DeG.,  J.  &  S.  60." 
order    could    be    made.      The    court  22.  Coleman      v.      Hudson,      etc., 

theretore  has  no  further  jurisdiction  Bridge  Co.,  5  Blatchf.  56.     Compare 

in  the  case  except  to  execute  the  de-  Goddard  v.  Ordway,  4  Otto,  672. 
cree  for  costs,  when  the  supersedeas  23.  Ex   parte   Planters,   etc.,    Ins. 

is  removed,  if  it  should  be  removed,  Co.,  50  Ala.  390. 
or  till  the  decree  is  reversed  and  the  24.  Cunningham  v.  Fitzgerald,  138 

cause  thereby  reopened,  upon  the  re-  N.  Y.  165,  33  N.  E.  840. 
ceipt  of  the  mandate  from  the  Ap-  25.  Hawes    v.    Dobbs,    137    N.    Y. 

pellate  Court.    To  issue  a  restraining  465,  33  N.  E.  560. 
order   would    be   to  exercise   a    new, 

620 


Appeals.  §§  409,  410 

objection,  he  cannot,  on  appeal,  raise  the  objection  that  the  com- 
plainant had  a  perfect  remedy  at  law.26 

§  409.  Appeal  record — An  appeal  from  an  order  granting  an 
injunction,  upon  the  facts  alleged  in  the  complaint,  will  not  be 
heard  if  the  appeal  record  does  not  contain  the  complaint.27  On 
an  appeal  from  an  order  refusing  an  injunction,  the  case  must  be 
heard  on  the  same  facts  as  were  before  the  court  of  first  instance.28 
In  Montana  appeals,  the  California  practice  is  followed,  and  no 
bill  of  exceptions  is  necessary,  but  the  appeal  is  heard  upon  the 
complaint,  answer,  and  affidavits,  and  any  other  papers  or  evidence 
used  on  the  hearing  of  the  motion  for  injunction  in  the  court 
below.29 

§  410.  Conclusiveness  of  findings. — In  Illinois,  the  findings  of 
fact  in  an  injunction  suit,  are  not  conclusive  upon  the  Supreme 
Court,  and  may  be  reviewed  by  that  court  on  appeal  from  a  judg- 
ment of  the  appellate  court.30  But,  ordinarily,  the  findings  of  fact 
of  a  court,  sitting  as  a  court  of  chancery,  will  not  be  disturbed  by 
the  appellate  court,  unless  they  are  so  manifestly  erroneous  as  to 
be  the  result  of  oversight  or  mistake.31  Where  a  referee,  in  an 
injunction  suit,  refuses  to  find  certain  conclusions  of  fact  and  law, 
which  prima  facie  are  material  to  the  issues,  the  burden  rests  upon 
the  successful  party,  on  appeal,  to  show  that  the  errors  were  harm- 
less.32   Where  the  findings  of  the  court,  as  shown  in  the  decree,  are 

26.  Grandin  v.  Le  Roy,  2   Paige,  Transit,    9    Utah     31,    33    Pac.    229; 
509;  see  §  52,  ante.  Wells  v.  Wells,  V  Utah,  68,  24  Pac. 

27.  Davis  v.  Fasig,  128  Ind.  271,  754;  Ullman  v.  McCormick,  12  Col. 
277,  27  N.  E.  726.  553;    Doe   v.    Vallejo,    29    Cal.    386; 

28.  Terhune  v.  Midland  R.  Co.,  36  Coryell  v.  Cain,    16  Cal.  567. 

N.  J.  Eq.  318;  New  Jersey  Franklin-  .32.  Livingston  v.  Metropolitan  EI. 

ite  Co.  v.  Ames,  12  N.  J.  Eq.  507.  R.  Co.,  138  N.  Y.  76,  33  M.  E.  732; 

29.  Granite  Mountain  Min.  Co.  v.  Sperb  v.  Metropolitan  El.  R.  Co.,  137 
Weinstein,  7  Mont.  346,  17  Pac.  113;  N.  Y.  155,  32  N.  E.  1050;  Bookman 
Hunt  v.  Steese,  75  Cal.  626,  17  Pac.  v.  New  York  El.  R.  Co.,  137  N.  Y. 
920.  302,  33  N.  E.  333;  Sutro  v.  Manhat- 

30.  People  v.  Diedrich,  141  111.  tan  R  Co.,  137  N.  Y.  592,  33  N.  E. 
665,  30  N.  E.   1038.  334. 

31.  Block    v.     Salt    Lake    Rapid 

621 


§§  410a,  411  Appeals. 

fully  sustained  by  the  evidence,  and  warrant  a  permanent  injunc- 
tion, the  refusal  to  grant  such  an  injunction  is  reversible  error.3* 
And  it  is  reversible  error  to  grant  a  perpetual  injunction  in  favor 
of  one  having  only  a  leasehold  interest  with  a  contingent  right  of 
reversal.34 

§  410a.  Scope  of  review  by  appellate  court. — In  Connecticut 
it  is  decided  that  upon  an  appeal  from  an  order  of  the  trial  court 
granting  an  injunction  conclusions  reached  by  such  court  upon 
conflicting  testimony  will  not  be  reviewed  by  the  appellate  court.35 
And  in  Illinois  in  the  absence  of  a  complete  record  it  is  decided 
that  on  appeal  it  will  be  presumed  that  a  sufficient  showing  was 
made  to  warrant  the  chancellor  in  granting  an  order  for  an  injunc- 
tion without  bond  and  without  notice.36  And  in  New  York  also  on 
an  appeal  from  an  order  denying  a  motion  for  an  injunction  based 
on  affidavits  merely  pending  suit  in  an  action,  the  object  of  which 
is  to  restrain  the  performance  of  certain  acts  by  public  officials 
the  court  will  not  consider  the  questions  involved  in  the  action." 
Likewise  in  Nebraska  where  affidavits  in  support  of  and  against 
the  continuance  of  a  temporary  injunction  are  not  preserved  in  a 
bill  of  exceptions  the  court  on  appeal  will  presume  that  they  were 
sufficient  to  support  the  allegations  of  the  petition  and  warrant  the 
issuance  of  the  order.38 

§  411.  Appeal  or  mandamus — Ordinarily,  the  mischief  caused 
by  the  improvident  granting  of  an  injunction,  is  to  be  remedied 
by  appeal,  but  when  there  has  been  a  flagrant  abuse  of  discretion 
in  the  court  below,  the  Supreme  Court  will  interfere  by  mandamus 
if  the  occasion  is  urgent.39     And  where  an  injunction  has  been 

33.  Farley  v.  O'Malley,  77  Iowa,  Div.  (N.  Y.)  633,  78  N.  Y.  Supp. 
631,  42  N.  W.  435.  1021.      The    court    in    this    case    re- 

34.  Welsh  v.  New  York  El.  R.  Co.,  fused  to  interfere  with  the  discretion 
12  N.  Y.  Supp.  545.  of  the  court  below. 

35.  Kaspar  v.  Dawson,  71  Conn.  38.  State  v.  Jessen,  66  Neb  515, 
405,  42  Atl.  78.  92  N.  W.  584. 

36.  Seneff  v.  Olivet  Baptist  39.  Detroit  v.  Circuit  Judge.  79 
Church,  89  111.  App.  352.  Mich.    384,     44     N.     W.     622;    Iron 

37.  Knowles  v.   Conklin,  77   App.  Works  v.  Speed,  59  Mich.  272;  Mac- 

622 


Appeals.  §  411 

illegally  granted  it  may  be  vacated  by  means  of  a  writ  of  man- 
damus, if  the  remedy  by  appeal  is  not  sufficiently  speedy  to  prevent 
serious  injury.40 

lean  v.  Circuit  Judge,  52  Mich.  257;  County   Judge,   44  Mich.  479;    Port 

Van   Norman   v.    Circuit   Judge,    45  Huron,  etc.,  R.  Co.  v.  Judge  of  St. 

Mich.   204.  Clair,  31  Mich.  456. 
40.  Tawas,   etc..   R.   Co.   v.   Iosco 


023 


§  412  Injunctions  Against  Fraud. 


CHAPTER  XII. 

Injunctions  Against  Feaud. 

Section  412.  Enjoining  frauds  upon  the  law. 

413.  Equity  jurisdiction  of  fraud. 

414.  Burden  of  proof  on  complainant. 

415.  Presumption  of  fraud. 

416.  Silence  as  fraud — suppressio  veri. 

417.  Participators  in  fraud  enjoined. 

418.  Enjoining  proceedings  at  law. 
418a.  Same  subject  continued. 

419.  No  injunction  if  remedy  at  law. 

420.  Complainant  must  show  injury. 

421.  Contracts  procured  by  fraud. 
421a.  Same  subject — Rule  illustrated. 
421b.  Same  subject — Bonds. 

422.  Corporate  fraud. 

423.  Breach  of  trust  as  fraud. 
423a.  Fraud  by  administrator. 

424.  Injunctive  relief  lost  by  laches. 

425.  Dissolution  on  answer  where  bill  charges  fraud. 

Section  412.  Enjoining  frauds  upon  the  law In  accordance 

with  the  maxim  of  universal  law,  that  no  one  shall  be  permitted  to 
profit  by  his  own  fraud  or  to  acquire  property  by  his  own  crime, 
a  court  of  equity  may  enjoin  from  taking  under  a  will,  a  legatee 
who  caused  the  death  of  the  testator  in  order  to  prevent  revocation.1 
And  citizens  of  a  State  may  in  a  proper  case  be  enjoined  from 
bringing  suits  in  another  State  merely  for  the  purpose  of  evading 
the  laws  of  their  own.  Thus,  where  a  judgment  creditor  and 
debtor  are  both  residents  of  Iowa,  the  court  will  enjoin  the  creditor 
from  attempting,  in  another  State,  to  reach  wages  exempt  in  Iowa.2 

1.  Preston  v.  Palmer.  Abb.  N.  C.  3.  Zimmerman  v.  Franke,  34  Kan. 
452.  See  New  York  Mut.  Life  Ins.  650,  9  Pac.  747;  Snook  v.  Snetzer,  25 
Co.  v.  Armstrong,  117  U.  S.  591,  599,  Ohio  St.  516.  See,  also,  Engel  v. 
6  S.  Ct.  877,  29  L.  Ed.  997.  Scheuerman.    40    Ga.  206;    Dehon   v. 

2.  Teager  v.  Landsley,  69  Iowa,  Foster,  4  Allen  (Mass.),  545;  Vail  v. 
725,  27  N.  W.  739;  Hager  v.  Adams,  Knapp,  49  Barb.  (N.  Y.)  299. 

70  Iowa,  746,  30  N.  W.  36. 

G24 


Injunctions  Against  Fraud.  §  413 

And  the  rule  is  the  same  in  Kansas  and  Ohio,3  and  in  Texas.4  So 
a  creditor  will  be  enjoined  from  evading  the  laws  of  his  own  State 
and  bringing  a  suit  in  another  State  to  obtain  a  preference  over 
other  creditors  which  he  could  not  have  in  his  own.5  And  an  in- 
junction will  lie  to  prevent  a  resident  of  a  State  from  prosecuting 
an  attachment  against  another  resident  in  the  courts  of  another 
State  in  violation  of  a  statute  against  sending  a  claim  out  of  the 
State  for  collection  in  order  to  evade  the  exemption  laws.6  But  a 
court  will  not  enjoin  a  suit  in  another  Stat*  on  the  ground  that 
the  tenor  of  judicial  decision  in  that  State  is  different  from  its 
own.7 

§  413.  Equity  jurisdiction  of  fraud. — A  court  of  equity  will 
interfere  to  restrain  the  use  of  an  advantage  gained  in  a  court  of 
ordinary  jurisdiction,  where  such  advantage  has  been  gained  by 
the  fraud,  accident  or  mistake  of  another  party.8  So  it  is  said  to 
be  well  settled  that  this  jurisdiction  of  a  court  of  equity  will  be 
exercised  whenever  a  party  having  a  good  defense,  to  an  action  at 
law  has  been  prevented  by  the  fraud  or  improper  management 
of  the  other  party  from  making  it  and  by  reason  thereof  a  judg- 
ment has  been  obtained  which  it  is  against  conscience  to  enforce.9 
And  the  powers  of  courts  of  equity  will  be  freely  but  cautiously 
exercised  to  prevent  one  party  to  a  contract  or  deed  or  suit  from 
obtaining  by  means  of  fraud  an  undue  advantage  over  the  adverse 
party  in  cases  in  which  the  defrauded  party  has  no  adequate  legal 
remedy.10    An  injunction  will  not,  however,  be  granted  to  prevent 

4.  Moton  v.  Hull,  77  Tex.  80,  13  S.  N.    E.    187,   per  Beck,  J.:      "Equity 
W.  849.  will  use  all  its  powers  to  circumvent 

5.  Keyser  v.  Rice,  47  Md.  203.  fraud  and  will  delight  to  use  the  writ 

6.  Wilson  v.  Joseph,   10/  Ind.  490,  of   injunction   to    defeat   conspiracy." 
8  N.  E.  616.  In    Wingate   v.    Haywood.   40    N.    H. 

7.  Carson    v.    Dunham,    149    Mass.  437,  the  enforcement  of  a  fraudulent 
52,  20  N.  E.  312.  judgment   was    perpetually    enjoined, 

8.  Pearce  v.  Olney,  20  Conn.  544.  Fowler  J.,   saying  that   "  equity   has 
See  §  418  herein.                                         so  great  an  abhorrence  of  fraud  that 

9.  Pearce  v.   Olney,  20  Conn.   544,        it   will   set  aside   its  own   decrees   if 
554.     Per  Hinman,  J.  founded   thereupon,"   and   citing  Ma 

10.  Palo   Alto   Banking  &   Invest-       rine  Ins.  Co.  v.  Hodgson,  7   Craneh, 
ment  Co.  v.  Mahar.  65  Iowa.   74,  21       332;    McDonald    v.    Neilson.    2    Cow. 

625 
40 


§413 


Injunctions  Against  Fraud. 


fraud  unless  the  bill  sets  forth  the  specific  acts  of  fraud.11  It  is  not 
enough  that  the  bill  contains  loose  general  charges  of  fraud  and 
conspiracy,  unless  it  also  alleges  facts  which  warrant  an  inference 
of  fraud.12  To  lay  a  ground  for  injunctive  relief  there  must  be  an 
averment  of  facts  and  not  of  mere  suspicions.  Thus,  to  obtain  an 
injunction  against  a  judgment  at  law  on  the  ground  of  perjury 
and  surprise  in  obtaining  it,  the  bill  must  name  the  witnesses  who 
swore  falsely,  and  set  forth  facts  tending  to  show  that  their  testi- 
mony was  false.13  And  if  the,  fraud  alleged  in  the  bill  a3  the  sole 
ground  of  injunctive  relief  is  not  proved,  the  complainant  is  not 
entitled  to  the  relief  on  other  grounds.14 


(N.  Y.)  139;  Reigal  v.  Wood,  1 
Johns.  Ch.  (N.  Y.)  402;  Blake  v. 
Lowe,  3  Desaus.  (S.  C.)  263,  270; 
Gainsborough  v.  Gilford,  2  P.  Wms. 
424 ;  Jarvis  v.  Chandler,  1  Turn.  &  R. 
319. 

11.  Powell  v.  Parker,  38  Ga.  644; 
Northern  C.  R.  Co.  v.  Walworth,  7 
Pa.  Dist.  R.  766;  Dicker9on  v.  Bank- 
ers' Loan  &  I.  Co.,  93  Va.  498,  25  S. 
E.  54. 

Where  complainant,  who  had 
conveyed  to  plaintiff  the  use  of 
his  name  for  manufacturing  pur- 
poses for  20  years,  after  that  time 
files  a  bill  to  enjoin  the  further  use 
of  his  name,  and  the  contract  was  as- 
serted by  defendants  to  have  con- 
veyed a  perpetual  right  to  his  name, 
and  the  bill  alleges  that  the  actual 
contract  between  the  parties  limited 
the  period  to  20  years,  and  that  if 
the  writings  were  capable  of  being  so 
construed  as  to  give  an  unlimited 
right  to  defendants,  then  such  con- 
struction would  be  a  fraud  on  com- 
plainant, and  ought  not  to  be 
adopted,  such  allegation  sufficiently 
charges  fraud.  Dobbins  v.  Cragin 
50  N.  J.  Eq.  640,  23  Atl.  172. 

12.  Brooks  v.  Dick,  135  N.  Y.  652, 


32  N.  E.  230.  See  Hower  v.  Weiss, 
etc.,  El.  Co.,  55  Fed.  356,  where  the 
gravamen  of  the  bill  was  fraud  and 
the  injunction  was  sustained  on  ap- 
peal, but  by  a  divided  court. 

In  Palo  Alto  Banking  &  Invest- 
ment Co.  v.  Mahar,  65  Iowa,  74,  21 
N.  E.  187,  Beck,  J.,  said:  "It  is 
insisted  by  counsel  that  the  petition 
shows  no  cause  for  an  injunction 
against  Jenswold  and  Taylor.  We 
think  differently.  It  alleges  that  these 
defendants  are  about  to  receive  a  con- 
veyance of  the  property  and  are  con- 
spiring with  Maher  to  defraud  plain- 
tiffs." 

In  Ambler  v.  Choteau,  107  U. 
S.  586,  1  S.  Ct.  556,  27  L. 
Ed  322,  Waite,  C.  J.,  said:  "The 
words  '  fraud '  and  '  conspiracy  ' 
alone,  no  matter  how  often  repeated 
in  a  pleading,  cannot  make  a  case 
for  the  interference  of  a  court  of 
equity.  Until  connected  with  some 
specific  acts  for  which  one  person  is 
in  law  responsible  to  another,  they 
have  no  more  effect  than  other  words 
of  unpleasant  signification." 

13.  Kersey  v.  Rash,  3  Del.  Ch.  321. 

14.  Britton  v.  Brewster,  2  Fed. 
160. 


626 


Injunctions  Against  Feaud. 


§414 


§  414.  Burden  of  proof  on  complainant. — While  fraudulent 
intent  is  often  largely  a  matter  of  inference,15  yet,  to  found  a 
claim  for  injunctive  relief,  the  complainant  must  be  able  to  create 
more  than  suspicion ;  he  must  establish  the  bad  faith  of  defendant 
beyond  reasonable  doubt.16  An  injunction  should  not  be  granted 
on  a  fact  or  series  of  facts,  which.,  though  not  free  from  suspicion, 
are  reasonably  consistent  with  an  honest  intent.17  And  where  a 
party  seeks  to  impeach  a  judgment,  and  enjoin  its.  collection,  on 
the  ground  of  fraud,  the  burden  of  proof  rests  on  him  to  establish 
it.18  But  where  the  situation  seems  to  clearly  indicate  fraud  the 
court  may  before  full  proofs  are  received  grant  a  preliminary  in- 


15.  Odenheimer  v.  Hanson,  4  Mc- 
Lean, 437;  Tardy  v.  Morgan,  3  Mc- 
Lean, 358. 

16.  Gould  v.  Gould,  3  Story,  516 
Hubbard  v.  Turner,  2  McLean,  519 
Phettiplace  v.  Sayles,  4  Mason,  312 
Babbitt  v.  Dotten,  14  Fed.  19. 

17.  A  debtor  sold  his  whole  stock 
of  goods  for  cash  some  days  before  a 
petition  of  his  creditors  for  an  in- 
junction and  a  receiver  was  filed,  at 
a  fair  though  somewhat  reduced 
price,  the  sale  being  conducted  with- 
out any  concealment,  and  the  inten- 
tion and  repeated  efforts  to  sell  hav- 
ing been  widely  known  in  the  busi- 
ness community  for  some  time  prior 
to  the  sale,  and  the  goods  were  re- 
moved publicly  during  business  hours 
to  the  vendees'  store,  where  they  re- 
mained for  several  days,  separate  and 
apart  from  their  other  stock.  There 
was  no  allegation  or  evidence  that  the 
vendees  were  insolvent,  and  no  ap- 
pearance of  collusion  in  the  sale. 
There  was  a  conveyance  of  certain 
real  estate  by  the  debtor  to  his  wife, 
but  there  was  no  evidence  of  fraud; 
the  conveyance  having  been  made  long 
before  the  indebtedness  was  con- 
tracted, and,  so  far  as  appeared,  not 


in  anticipation  thereof.  Held,  that 
there  was  no  abuse  of  discretion  on 
the  preliminary  hearing,  in  refusing 
to  grant  an  injunction  and  appoint  a 
receiver.  Einstein's  Sons  v.  Lee,  89 
Ga.  130..  15  S.  E.  27.  In  an  action  in 
which  an  injunction  was  asked,  to  re- 
strain defendant  from  selling  or  dis- 
posing of  his  property  pendente  lite, 
an  affidavit  by  defendant,  stating  that 
the  restraint  of  the  use  of  his  prop- 
erty, or  any  order  preventing  him 
from  applying  it  to  his  necessities, 
will  be  a  great  hardship,  furnishes  no 
ground  for  a  belief  that  he  will  dis- 
pose of  his  property  pending  the  ac- 
tion with  intent  to  defraud  plaintiff. 
Campbell  v.  Ernest,  64  Hun,  188,  19 
N.  Y.  Supp.  123.  Where  defendant's 
place  of  business  was  not  near  plain- 
tiff's, and  for  a  long  time  its  adver- 
tisements and  notices  stated  that  it 
had  no  connection  with  plaintiff,  and 
its  signs  are  essentially  different,  it 
will  not  be  held  to  have  made  a 
fraudulent  use  of  its  name.  Scott 
Stamp  &  Coin  Co.  v.  J.  W.  Scott  Co., 
15  N.  Y.  Supp.  325,  58  N.  Y.  Super. 
Ct.  379. 

18.  Daly   v.   Ogden,   28   111.   App. 
319. 


627 


§  415  Injunctions  Against  Fraud. 

junction  to  preserve  the  status  quo  until  the  facts  shall  be  fully 
developed  by  those  proofs  and  final  hearing.19 

§  415.  Presumption  of  fraud. — Fraud  which  entitles  a  creditor 
to  injunctive  relief,  will  easily  be  inferred  where  the  debtor's 
suspected  transactions  have  been  with  members  of  his  own  family.20 
So  although  a  husband,  as  guardian  of  his  wife,  was  indebted  to 
her  in  a  much  larger  amount  than  the  value  of  all  his  property 
transferred  by  him  to  her,  yet,  where  the  facts  indicate  an  intent 
to  defraud  creditors  by  the  transfer,  such  as  the  transfer  of  personal 
jewelry  and  office  furniture,  without  change  of  possession,  a  tem- 
porary injunction  restraining  the  transfer  of  the  personal  property 
by  the  wife,  will  be  continued  until  final  hearing.21  And  the  fore- 
closure, by  a  wife,  of  a  chattel  mortgage,  given  to  her  by  her  hus- 
band in  fraud  of  creditors,  will  be  enjoined  at  the  instance  of  an 
attaching  creditor,  before  he  has  reduced  his  demand  to  a  judg- 
ment.22 And  where  a  firm  was  hopelessly  insolvent,  owing  various 
creditors,  and  incurred  large  debts  after  having  executed  a.  written 
agreement  to  mortgage  all  their  assets  to  a  favored  creditor,  and 
afterwards  executed  the  mortgage,  and  turned  over  to  such  cred- 
itor all  their  notes  and  claims,  an  injunction  was  granted  to  other 
creditors  restraining  the  preferred  creditor  from  collecting  the 
notes  and  securities,  and  from  foreclosing  the  mortgage.23  Fraud 
will  easily  be  presumed  where  an  infant  or  imbecile,  or  an  intoxi- 
cated person,  has  parted  with  his  property  for  a  trifling  considera- 
tion.     Thus,    an   injunction  was   issued  to  prevent   the   sale  of 

19.  Lundy  v.  Seymour,  55  N.  J.  with  the  fraud  of  T.,  the  sheriff 
Eq.  1,  35  Atl.  893.  would  be  enjoined  from  paying  to  the 

20.  One  T.,  a  merchant,  drew  $17,-  father  on  his  judgments  the  money 
000  from  the  bank,  and  visited  his  derived  from  the  sale  of  T.'s  goods, 
father  the  same  day.  The  latter  was  Memphis  Grocery  Co.  v.  Trotter 
a   small  merchant  in   a   neighboring  (Miss.),  7  So.  550. 

town.     The  next  day  T.  made  an  as-  21.  Babcock  v.  Jones,  62  Hun,  565, 

signment  for  the  benefit  of  creditors.  17  N.  Y.  Supp.  67. 

His  property  was  attached  and  sold.  22.  Meacham  Arms  Co.  v.  Swarts, 

His  father  settled  with  some  of  the  2  Wash.  Ter.  412;  Hahn  v.  Salmon, 

creditors,  and  took  judgments  against  20  Fed.  801. 

T.     Held,  that  in  view  of  many  cir-  23.  Fechheimer  v.  Baum,  37  Fed. 

cumstances     connecting     the     father  167. 

628 


Injunctions  Against  Feaud.  §§  416,  417 

mortgaged  premises,  where  it  appeared  that  the  mortgagor  was 
an  habitual  drunkard,  and  had  been  reduced  to  the  verge  of  in- 
sanity, by  the  mortgagee,  who  could  not  show  that  he  had  given 
valid  consideration  for  the  mortgage.24  And  a  court  of  equity  will 
enjoin  the  enforcement  of  a  note  and  mortgage,  at  the  instance  of 
a  widow  who  was  induced  to  execute  them  by  threats  to  prosecute 
her  son  for  a  crime.2" 

§  416.  Silence  as  fraud;  suppressio  veri. — The  fraud  may  con- 
sist in  concealment  and  suppression  as  well  as  in  positive  misrepre- 
sentation.26 So  if  an  owner  stands  by  and  knowingly  suffers  an 
innocent  person  to  purchase  his  property  without  giving  him  notice 
of  his  title,  he  may  be  enjoined  on  the  ground  of  fraud  from  a  sub- 
sequent assertion  of  his  title  to  the  prejudice  of  the  purchaser.27 
And  a  person  not  intending  to  pay,  by  inducing  one  to  sell  him 
goods  on  credit  through  the  fraudulent  concealment  of  his  in- 
solvency, is  guilty  of  fraud,  which  entitles  the  vendor  to  injunctive 
relief.28 

§  417.  Participators  in  fraud  enjoined. — Not  only  will  the 
prime  actor  in  the  fraud  be  enjoined,  but  also  any  other  person 

24.  Van  Horn  v.  Keenan,  28  111.  of  such  mortgage  from  plaintiff, 
445;  Rembert  v.  Brown,  17  Ala.  667.  where  the  complaint  alleges  that  the 
In  Reese  v.  Reese,  89  Ga.  645,  15  S.  E.  mortgage  was  fraudulent  to  the 
846,  a  son  who  had  obtained  a  note  knowledge  of  defendant  and  plaintiff's 
from  his  father  while  he  was  non  vendor,  and  that  its  concealment  was 
compos,  was  enjoined  from  proceed-  with  the  intent  to  defraud  plaintiff, 
ing  with  an  action  on  the  note,  the  evidence  of  defendant's  participation 
bill  alleging  that  he  intended  to  carry  in  the  concealment  and  in  inducing 
the  money  beyond  the  State  and  con-  plaintiff  to  purchase  the  premises 
vert  it  to  his  own  use.  under  the  belief  that  they  were  free 

25.  Turley  v.  Edwards,  18  Mo.  from  incumbrance  is  admissible. 
App.  676.  Briggs  v.  Langford,  59  Hun   (N.  Y.), 

26.  In  an  action  to  restrain  fore-  615,  12  N.  Y.  Supp.  657. 

closure  of  a  mortgage  purchased  by  27.  New  England  Ins.  Co.  v.  The 

defendant  on  premises  previously  pur-  Sarah  Ann,   2    Sumn.   206 ;    aff'd   13 

chased   by   plaintiff,   on    the    ground  Pet.   (U.  S.)  387,  10  L.  Ed.  213. 

that  at  the  time  of  plaintiff's   pur-  28.  Fechheimer  v.  Baum.  37   Fed. 

chase  defendant  and  plaintiff's  vendor  167 ;  Jaffrey  v.  Brown,  29  Fed.  477. 
fraudulently  concealed  the   existence 

629 


§  418  Injunctions  Against  Fraud. 

who  takes  title  to  the  property  in  question  with  knowledge  of  the 
equities  attaching  to  it,  and  so  lends  himself  to  the  furtherance  of 
the  artifice.29  But  the  rule  is  otherwise  as  to  a  stranger  to  whom 
the  affected  property  is  transferred  in  the  ordinary  course  of  busi- 
ness and  without  any  notice  of  the  fraud.  Thus  an  injunction 
against  the-  foreclosure  of  a  mortgage,  on  the  ground  of  fraud  in 
the  procurement  of  title  by  the  mortgagor,  is  properly  refused 
where  there  is  sufficient  evidence  that  the  mortgagee  is  a  bona  fide 
creditor,  without  notice  of  such  fraud.30  But  a  petition  to  restrain 
the  governor  from  acting  on  the  return  and  report  of  the  census 
taker,  in  proceedings  for  the  organization  of  a  new  county,  alleging 
fraud  on  the  part  of  the  census  taker  and  others,  but  not  that  the 
fraud  was  ever  brought  to  the  attention  of  the  governor,  or  that 
he  refused  an  investigation  of  it  under  the  statutes,  does  not  author- 
ize an  injunction.31 

§  418.  Enjoining  proceedings  at  law. — A  court  of  equity  will 
sometimes  enjoin  proceedings  at  law  in  which  one  party  by  means 
of  fraud,  accident  or  mistake  is  obtaining  an  unfair*  advantage  over 
another,  and  so  will  prevent  a  court  of  law  from  being  made  an 
instrument  of  injustice  for  which  there  is  no  legal  remedy.32    This 

29.  G.  procured  a  contract  for  the  continued  the  erection  of  the  flat  as 

purchase    of    a    lot    in    the    city    of  her   agent.      Held,   that  its  erection 

Brooklyn,  situated  in  a  neighborhood  would     be   enjoined,    since   the     wife 

which  was  occupied  by  the  residences  bought  the  land  subject  to  plaintiff's 

of  people  of  wealth  and  social  stand-  equities,  which  attached  as  soon  as  he 

ing,  and  which  had  never  been  invaded  acquired  title  to  the  same.     Lewis  v. 

by   flats   or    tenement-houses.      Upon  Gollner,  129  N.  Y.  227,  29  N.  E.  81; 

his  announcing  his  intention  to  build  reversing  14  N.  Y.  Supp.  362. 
a     seven-story  flat     in     the     rear     of  30.  Putney  v.  Kohler,  84  Ga.  528, 

plaintiff's  residence,  plaintiff  bought  11   S.  E.   127.     That  a  transferee  is 

his  contract,  under  an  agreement  that  not    estopped    by    the    transferrer's 

he  would  not  "  construct  or  erect  any  fraud  of  which  he  has  no  knowledge, 

flats   in   plaintiff's   immediate   neigh-  see  Parsons  v.  Joseph,  92  Ala.  403,  8 

borhood."    G.  thereupon  proceeded  to  So.  788. 

build   a   flat   on    a    lot   opposite   the  31.  Martin    v.    Ingham,    38    Kan. 

other  one,  but  before  its  completion  641,  17  Pac.  162;  Martin  v.  Lacy,  39 

eold   the    lot   to   his    wife,   who   had  Kan.  703.  18  Pac.  951. 
knowledge  of  the  contract  with  plain-  32.  Tyler  v.  Hamersley,  44  Conn. 

tiff,  for  about  one-third  its  cost,  and  419. 

630 


Injunctions  Against  Fraud.  §  418a 

principle  has  been  applied  where  an  administrator  obtained  a  judg- 
ment in  a  foreign  jurisdiction,  without  any  intentional  fraud, 
which  would  have  been  fraudulent  if  taken  by  the  intestate  by 
reason  of  a  special  agreement  into  which  he  had  entered.33  A  court 
may  also  enjoin  the  enforcement  of  its  own  decree  of  foreclosure 
shown  in  a  creditor's  suit  to  be  fraudulent  as  to  creditors.34  And 
where  summary  proceedings  for  the  possession  of  leased  premises 
were  instituted  against  the  tenant,  it  was  held  that  the  tenant  could 
maintain  a  suit  to  enjoin  the  proceedings  on  the  ground  that  he 
had  been  induced  by  fraud  to  execute  a  paper  purporting  to  change 
his  tenancy  from  a  tenancy  from  year  to  year  to  a  tenancy  at  will.35 
Again,  where  there  is  a  conspiracy  to  defeat  a  deed  on  the  false 
ground  that  it  is  forged,  equity  will  enjoin  the  conspirators  from 
making  and  accepting  deeds  with  the  intention  of  conveying  to 
innocent  purchasers.36 

§  418a.  Same  subject  continued. — Where  a  judgment  against 
a  surety  was  procured  by  means  of  artifice  and  circumvention  and 
was  obtained  in  contempt  of  an  injunction  of  the  court  and  the 
assertion  of  any  right  under  it  would  have  been  fraudulent,  it  was 
determined  that  the  judgment  creditor  must  be  perpetually  en- 

33.  Stanton  v.  Embry,  46  Conn.  a  suit  to  enjoin  the  foreclosure  of  the 
595.  fraudulent  mortgage,  and  this,  with- 

34.  Becker  v.  Church,  42  Hun  (N.  out  regard  to  whether  his  own  mort- 
Y.),  258;  aff'd  115  N.  Y.  562,  22  N.  gage  was  or  was  not  due,  and  without 
E.  748.  regard  to  whether  the  mortgagor  was 

35.  Robinson  v.  Springfield  Co.,  21  or  was  not  insolvent.  McCormick  v. 
Fla.  203.  In  Crawford  v.  Fisher,  10  Hartley,  107  Ind.  248,  6  N.  E.  357. 
Simons,  479,  it  is  said,  "  one  court  of  36.  Palo  Alto  Banking  &  I.  Co.  v. 
equity  has  overhauled  the  decree  of  Mahar,  65  Iowa,  74,  21  N.  W.  187, 
another  court  for  fraud,  contrivance  per  Beck,  J.:  "Equity  will  not  in 
or  covin  in  obtaining  it."  A  mort-  such  cases  be  particular  to  inquire 
gage  of  chattels  was  not  recorded  into  the  precise  effect  of  the  fraud, 
within  ten  days,  as  required  by  law,  or  whether  there  may  not  be  some 
and,  before  a  new  mortgage  was  given  other  remedy  than  by  injunction 
in  renewal,  the  mortgagor  fraudu-  which  will  defeat  it.  The  fraudulent 
lently  executed  an  intervening  mort-  confederation  being  shown,  equity 
gage,  with  the  design  of  cutting  off  will  lay  its  hand  heavily  on  the  con- 
the  rights  of  the  bona  fide  mortgagee.  spirators  and  arrest  their  efforts  to 
Held,  that  the  latter  could  maintain  wrong  their  intended  victims." 

631 


§  419  Injunctions  Against  Fkaud. 

joined  from  proceeding  upon  the  judgment.37  And  a  bill  in  equity 
will  lie  to  enjoin  the  prosecution  of  a  pending  suit  at  law  upon  a 
policy  of  life  insurance,  and  to  compel  the  surrender  of  the  policy 
for  cancellation,  where  it  was  reinstated  during  the  insured's  last 
illness,  after  it  had  been  allowed  to  lapse  for  non-payment  of 
premiums,  upon  the  false  and  fraudulent  certification  of  the 
insured  and  his  physician  that  he  was  then  in  as  good  health  as 
when  first  examined  upon  his  application  for  the  policy.38  The 
power  of  a  court  of  equity,  however,  to  restrain  the  collection  of  a 
judgment,  or  the  prosecution  of  a  suit  at  law  upon  evidence  show- 
ing accident,  mistake  or  fraud  should  not  be  exercised  except  in 
cases  where  the  purposes  of  justice  clearly  require  it. 

§  419.  No  injunction  if  remedy  at  law. — A  court  of  equity  will 
not  ordinarily  interfere  to  frustrate  an  act  or  scheme  of  fraud, 
where  the  complainant  has  an  equally  prompt  and  effective  remedy 
in  a  court  of  law.40  And  a  bill  in  equity  to  enjoin  the  prosecution 
of  a  suit  at  law  will  not  be  entertained  where  the  defense  to  it  can 
be  made  as  well  at  law  as  in  equity.41  So  it  is  decided  that  equity 
will  not  restrain  an  action  at  law  on  the  ground  of  fraud  where 
the  fraud  alleged  would  be  a  complete  and  perfect  defense  to  the 

37.  Coge's  Ex'rs  v.  Cassidy,  23  an  injunction  against  the  prosecu- 
How.   (U.  S.)   109,  16  L.  Ed.  430.  tion  of  suits  on  the  notes.    Held,  that 

38.  John  Hancock  Mut.  L.  I.  Co.  as  the  petition  disclosed  a  good  de- 
v.  Dick,  114  Mich.  337,  72  N.  W.  179,  fense  to  suits  on  the  notes,  plaintiffs 
43  L.  R.  A.  566.  Compare  Insurance  were  not  entitled  to  an  injunction. 
Co.  v.  Bailey,  13  Wall.  (U.  S.)  616,  Hardy  v.  First  Nat.  Bank,  46  Kan. 
20  L.  Ed.  501.  88,  26  Pac.  423.     A  bill  to  enjoin  a 

40.  An  investment  company  was  judgment  by  default  on  a  policy  of  in- 
organized  to  purchase  land.  By  the  surance,  on  the  ground  that  service 
fraud  of  its  president  and  secretary,  on  a  "  late  agent "  of  the  complain- 
plaintiffs  were  induced  to  take  shares,  ant  was  insufficient,  and  that  the 
paying  part  cash,  and  giving  their  policy  had  been  fraudulently  altered, 
notes  for  the  balance.  The  president  was  dismissed;  remedy  by  writ  of 
and  secretary  were  also  the  officers  error  being  complete,  and  the  judg- 
of  the  bank  to  which  they  sold  the  ment  void  if  obtained  without  juris- 
notes.  In  a  suit  to  set  aside  the  diction.  Alabama  Ins.  Co.  v.  King- 
purchase  and  to  cancel  the  notes,  the  man.  21  111.  App.  493. 
plaintiffs  alleged  that  the  bank  had  41.  Payson  v.  Lawson,  134  Mass. 
notice  of  the  fraud,  and  they  prayed  593  45  Am.  Rep.  348. 

632 


Injunctions  Against  Fraud.  §  420 

action  at  law.42  So  equity  will  not  enjoin  the  prosecution  of  an 
action  at  law  to  recover  chattels  mortgaged  by  a  married  woman  for 
the  debt  of  her  husband,  even  though  the  mortgage  was  procured 
by  fraud.  The  law  affords  her  full  opportunity  for  defense.43  And 
the  enforcement  of  a  judgment  will  not  be  restrained  for  fraud, 
unless  the  fraud  was  in  the  procurement  of  the  judgment,  and  not 
merely  in  the  cause  of  action  on  which  the  judgment  was  founded, 
and  which  could  have  been  interposed  as  a  defense.44  But  the  rule 
that  a  judgment  silences  all  defenses  which  might  have  been  urged 
against  its  rendition  cannot  be  invoked  in  an  action  to  enjoin  its 
execution  for  fraud  when  the  fraud  alleged  consists  in  acts  of  the 
party  which  prevented  his  adversary  from  setting  up  his  defenses.45 
And  a  person  defrauded  may  sometimes  have  injunctive  relief, 
where  the  legal  remedy  would  be  less  certain  and  effective.46 

§  420.  Complainant  must  show  injury. — While  a  large  part  of 
the  jurisdiction  of  equity  consists  in  its  power  of  dealing  with 
fraud  and  its  consequences,  no  party  can  obtain  injunctive  relief 
against  fraud,  unless  he  shows  that  he  has  sustained  or  is  about  to 

42.  Roemer  v.  Canlon,  45  N.  J.  Eq.  Ala.  564;  Peeples  v.  Burns,  77  Ala. 
234,   19  Atl.  664.  290." 

43.  Bergan  v.  Jeffries,  80  Ala.  349,  44.  Payne  v.  O'Shea,  84  Mo.  129; 
per  Somerville,  J.:  "The  fact  that  a  Ward  v.  Quinlivin,  57  Mo.  426;  Mur- 
fraud  was  perpetrated  on  the  wife  by  phy  v.  De  France,  101  Mo.  151,  13 
the    unauthorized    use    of    her    name  S.  W.  156. 

would  not  give   jurisdiction,  because  45.  United    States    v.    Throckmor- 

fraud     alone,     without     some     other  ton,    98    U.    S.    61,    25    L     Ed.    93; 

ground  of   cognizance,   does   not   au-  Pearce  v.  Olney,  20  Conn.  554;   Laz- 

thorize  a  party  to  seek  redress  in  a  arus  v.  McGuirk,  42  La.  Ann.  194,  8 

court   of   chancery,  where   he   has   a  So.  253. 

plain  and  adequate   remedy  at  law.  46.  Kelson    v.    Kockwell,    14    111. 

Smith  v.  Cockrell;  66  Ala.  64;  Dick-  375,  per  Caton,  J.:     "It  is  the  fraud 

inson  v.    Lewis,  34  Ala.  643;  Knotts  which  gives  jurisdiction  to  this  court, 

v.  Tarver,  8  Ala.  743.     If  the  prop-  and     the     aggrieved     party     is     not 

erty  mortgaged  were   real   estate,   it  obliged  to  resort  to  another  tribunal 

may  be  that  under  our  decisions  the  possessed   of   less    power    and    appli- 

bill  would  not  be  without  equity.  But  ances  to  ascertain  the  truth  and  grant 

the  reason  of  these  cases  has  no  ap-  the     requisite     remedy,     though    the 

plication  to  void  conveyances  of  per-  other  tribunal  may  have  jurisdiction, 

sonal  property.     Ryall  v.  Prince,  71  See,  also,  Propst  v.  Meadows,  13  111. 

Ala.    66;     Boyleston   v.    Farrior,    64  157." 

633 


§§  421,  421a         Injunctions  Against  Fraud. 

sustain  some  injury  from  it.47    But  very  slight  injury  will  be  suf- 
ficient to  entitle  the  defrauded  party  to  relief.48 

§  421.  Contracts  procured  by  fraud. — One  who  is  induced  by 
the  fraud  and  misrepresentation  of  another  to  enter  into  a  contract 
may  upon  a  proper  showing  of  the  facts  be  entitled  to  an  injunc- 
tion restraining  such  other  party  from  bringing  any  suit  to  enforce 
such  contract.49  The  reason  for  the  avoidance  in  equity  of  con- 
tracts and  instruments  procured  by  fraud,  is  the  reasonable  appre- 
hension that  the  evidence  of  the  fraud  may  not  always  be  attain- 
able, and  that  the  defense  of  fraud  may  not  always  be  available  at 
law.  And  it  is  a  natural  consequence  of  the  jurisdiction  to  cancel 
a  fraudulent  instrument,  that  the  court  should  restrain  any  pro- 
ceedings through  which  a  party  is  attempting  to  assert  a  right  based 
on  the  existence  of  the  instrument.50 

§  421a.  Same  subject;  rule  illustrated. — Where  a  vendor 
fraudulently  represents  that  he  has  a  good  and  perfect  title  to  the 
real  estate  sold,  and  the  vendee,  relying  on  such  representation,  is 
induced  to  purchase,  the  collection  of  the  purchase  money  may  be 
enjoined  until  the  title  shall  have  been  made  good  as  represented.51 
And  where  the  obligor,  in  a  bond  for  titles,  sued  the  obligee  in 
ejectment,  on  failure  of  the  latter  to  pay  the  entire  purchase 
money,  and  the  obligee  filed  a  bill  alleging  a  misrepresentation  of 
a  material  fact  by  the  obligor,  at  the  time  of  purchase,  as  to  the 
area  of  the  land ;  that  he  acted  on  such  misrepresentation ;  that  the 
obligor  could  make  no  title  to  that  part  of  the  land  so  misrepre- 
sented as  belonging  to  the  tract  sold ;  and  offered  to  pay  into  court 
whatever  might  be  equitably  due,  and  seeking  to  enjoin  the  action 
of  ejectment,  which  allegations  were  not  denied,  it  was  held  that 

47.  Taylor  v.  Mallory,  76  Md.  1,  49.  Dale  v.  Roosevelt,  5  Johns.  Ch. 
23  Atl.  1098.    The  party  complaining       (N.  Y.)    174. 

must  not  only  appear  to  have  been  50.  Becker  v.   Church,   115   N.  Y. 

misled  but  also  injured.    Schubart  v.  562.  22  N.  E.  748. 

Chicago  Gas  Light  Co.,  41  111.  App.  51.  Hinkle  v.  Margerum,  50   Ind. 

181.  240. 

48.  Linn  v.  Green,  17  Fed.  407. 

! 

634 


Injunctions  Against  Feaud.  §  421b 

the  injunction  should  be  granted,  and  the  question  whether  the 
obligee  acted  on  the  misrepresentation  of  the  obligor  or  not,  should 
be  left  to  a  jury.52  A  vendee  of  land  with  notice  of  the  rights  of 
a  prior  purchaser  of  the  timber  thereon  will  also  be  enjoined  from 
prosecuting  an  action  at  law  against  the  latter  to  recover  for  the 
timber  removed  by  him  and  this  is  held  true  even  though  the 
former  transaction  was  insufficient  under  the  statute  of  frauds 
where  the  circumstances  are  such  as  would  have  entitled  the  claim- 
ant thereunder  to  a  specific  performance.53  Chancery  will  also 
relieve  against  notes  and  executions  obtained  by  fraud,  by  granting 
a  perpetual  injunction.54  So  misrepresentations  fraudulently 
made  as  to  the  title,  quality  or  quantity  of  personal  articles  sold  is, 
where  the  vendor  is  insolvent  and  holds  the  negotiable  notes  of  the 
purchaser,  a  ground  of  relief  in  equity  through  its  injunctive 
process  to  prevent  a  multiplicity  of  suits.  In  such  a  case  the  in- 
junction should  prohibit  the  defendant  from  assigning  the  note 
or  any  judgment  thereon;  and  from  selling  under  execution  with- 
out giving  a  refunding  bond.55  But  where  a  bill  for  an  injunction 
against  a  judgment  obtained  against  plaintiff  on  a  note  executed  by 
him  as  surety,  charged  that  the  principal  had  induced  him  to  sign 
the  note  by  fraudulent  misrepresentations  as  to  the  purpose  for 
which  the  note  was  given  and  of  the  plaintiff's  liability  on  account 
thereof,  but  did  not  charge  or  prove  fraud  or  misrepresentation  by 
the  defendant  to  whom  the  note  was  executed  it  was  held  that  the 
bill  stated  no  case  for  relief.56 

§421b.  Same  subject;  bonds. — Where  electors  of  a  city  have 
been  induced  by  false  and  fraudulent  representations  of  a  railroad 
company  to  vote  bonds  to  aid  in  the  construction  of  its  road,  an  in- 
junction will  lie  on  their  application  to  restrain  the  collection  of 
the  bonds.57    The  rule  just  laid  down  has  been  quite  strictly  applied 

52.  Elder  v.  Allison,  45  Ga.  13.  Ch.  720.     See  Diekerson  v.  Bankers' 

53.  Oconto  Co.  v.  Lindquist,  119  Loan  &  I.  Co.,  93  Va.  498,  25  S.  E. 
Mich.  264,  77  N.  VV.  950.  548. 

54.  Henshaw  v.  Atkins,  2  Root  56.  Griffith  v.  Reynolds,  4  Gratt. 
(Conn.)    7.  (Va.)   46. 

55.  Bridges  v.   Robinson,  2  Tenn.  57.  Nash  v.  Baker,  37  Neb.   713, 

635 


§  422  Injunctions  Against  Frattd. 

in  Nebraska,  owing  to  the  doubtful  propriety  of  employing  the 
power  of  taxation  for  the  purpose  of  making  donations  to  enter- 
prises not  directly  connected  with  the  administration  of  govern- 
ment.58 A  proposition  to  issue  bonds  to  aid  a  railroad  company 
is,  upon  its  acceptance,  in  the  nature  of  a  contract,  and  therefore 
persons  induced  by  fraud  to  vote  for  the  issue  of  the  bonds  may 
on  that  ground  enjoin  their  issuance.59 

§  422.  Corporate  fraud. — Ordinarily,  courts  of  equity  will  not 
interfere  with  the  management  of  the  affairs  of  a  corporation,  but 
where  officers  of  a  corporation  manage,  through  the  instrumentality 
of  their  power  and  position,  to  deprive  an  equitable  owner  of  stock 
of  any  of  his  rights,  their  act  in  its  consequences  is  a  fraud,  against 
which  equity  will  give  relief  by  injunction.  And  where,  by  fraud- 
ulently refusing  to  transfer  stock  in  a  corporation,  the  officers  are 
put  in  a  position,  through  the  control  they  thereby  acquire,  to 
seriously  prejudice  the  interests  of  those  who  are  justly  entitled 
to  the  transfer,  and  so  act  as  to  make  their  purpose  to  accomplish 
that  prejudice  apparent,  the  meetings  they  can  control  will  be 
stayed  by  injunction,  until  the  transfers  can  be  compelled.60  And 
in  an  action  to  cancel  the  subscription  of  complainants  to  the  stock 
of  a  corporation,  on  the  ground  that  it  was  procured  by  false  repre- 
sentations, and  to  obtain  a  return  of  the  money  paid  for  the  stock, 
it  is  proper  to  restrain  by  injunction  any  disposition  of  the  cor- 
porate property,  and  the  money  paid  for  the  stock  pending  such 
suit.6*  And  in  such  cases  of  corporate  fraud,  a  court  of  equity  will 
sometimes  appoint  a  receiver,  and  take  possession  and  charge  of 

66  N.  W.  376;  Wullenwaber  v.  Duni-  59.  Wullenwaber   v.    Dunigan,    30 

gan,  30  Neb.  877,  47  N.  W.  420.     See,  Neb.  877,  47  N.  W.  420. 

also,  Curry  v.  Decatur  Co.,  61  Iowa,  60.  Archer     v.     American     Water 

71,  15  N.  W.  602;   Sinnett  v.  Moles,  Works  Co.,  50  N.  J.  Eq.  33,  24  Atl. 

38  Iowa,  25;  Henderson  v.  Railroad  508;   Elkins  v.  Camden,  etc.,  R.  Co., 

Company,  17  Tex.  560,  67  Am.  Dec.  36  N.  J.  Eq.  467;   Hilles  v.  Parrish, 

675;   Crump  v.  Mining  Company,  56  14   N.   J.   Eq.   380.      See.,   also,  New 

Am.  Dec.    116,   7   Gratt    (Va.)    352;  York,  etc.,  Transit  Co.  v.  Parrott,  36 

Wickham  v.  Grant,  28  Kan.  517.  Fed.  462. 

58.  Midland   Township   v.    County  61.  Sherman    v.    American    Stove 

Board,  37  Neb.  582,  56  N.  W.  317.  Co.,  85  Mich.  169,  48  N.  W.  537. 

636 


Injtjnctions  Against  Feaud. 


§423 


the  property  of  the  corporation  pending  the  injunction  suit.62  A 
stockholder  may  also  have  an  injunction  to  restrain  a  fraudulent 
issue  of  stock,  if  he  is  himself  a  holder  in  good  faith,  though  his 
vendor  was  not.63 


§  423.  Breach  of  trust  as  fraud. — A  breach  of  an  express  trust 
is  a  fraud,  for  which  an  interlocutory  injunction  may  be  necessary, 
pending  a  suit  to  establish  the  rights  of  the  cestui  que  trust.6*  A 
creditors'  bill,  which  alleges  an  indebtedness  to  plaintiffs,  and  that 
notes  were  given  therefor  for  the  purpose  of  hindering  plaintiffs 
in  bringing  their  action,  and  to  enable  the  debtor  to  execute  a  deed 
of  trust,  which  plaintiffs  ask  to  have  adjudged  fraudulent  and  void, 
states  a  cause  of  action  sufficient  to  sustain  an  order  restraining 
the  defendant  trustee  from  disposing  of  the  property  specified  in 
the  deed  of  trust  pending  the  action.63     Where  a  partnership  has 


62.  Featherstone  v.  Cooke,  L.  R. 
16  Eq.  298;  Auxiliary  Co.  v.  Vickers, 
L.  R.  16  Eq.  303;  Einstein  v.  Rosen- 
f<>)d,  38  N.  J.  Eq.  309. 

63.  Parsons  v.  Joseph,  92  Ala. 
403,  8  So.  788,  distinguishing  Dimp- 
fell  v.  Ohio  &  M.  Ry.  Co.,  110  U.  S. 
209,  3  S.  Ct.  573,  28  L.  Ed.  121; 
Hawes  v.  Oakland,  104  U.  S.  450,  26 
L.  Ed.  827. 

64.  A  fund  was  given  to  a  trustee 
for  the  separate  use  of  a  married 
woman  for  her  life  with  power  of 
appointment  by  will,  and  in  default 
thereof  to  her  child.  Her  husband 
used  the  fund,  having  been  substi- 
tuted as  trustee,  in  purchasing  real 
estate,  adding  his  own  money,  and 
taking  the  title  to  himself  as  trustee. 
The  wifv*  died,  having  survived  her 
child,  who  left  an  infant  heir  at  law. 
Tho  tiustee  afterwards  died,  devis- 
ing the  property  to  defendant  in 
trust,  to  convey  it  to  the  State  of 
South  Carolina  on  certain  conditions, 
ignoring  the  claims  of  the  infant 
heir  at  law.    After  a  bill  was  filed  on 


behalf  of  the  infant  heir,  claiming  the 
property  with  an  account  of  rents  and 
profits,  and  subpoena  served,  defend- 
ant addressed  a  letter  to  the  general 
assembly  of  South  Carolina,  asking 
its  acceptance  of  the  property.  The 
general  assembly  at  once  put  an  act 
on  its  passage  for  this  purpose.  Held, 
that  the  right  of  complainant  to  as- 
sert her  claims  was  imperiled,  and  an 
interlocutory  injunction  would  be  is- 
sued.   Lee  v.  Simpson,  37  Fed.  12. 

65.  Roberts  v.  Lewald.  107  N.  C. 
305,  12  S.  E.  279,  per  Merriman,  C. 
J. :  "  The  court  has  authority  to 
thus  secure  the  fund  arising  from  the 
sale  of  the  property.  Otherwise,  the 
trustee  might  dispose  of  the  property, 
as  directed  by  the  deed,  and  greatly 
embarrass,  if  not  wholly  defeat,  the 
right  of  the  plaintiff  to  have  the 
same  applied  to  the  payment  of  their 
debt,  when,  and  if,  they  shall  re- 
cover judgment  for  the  same.  Frank 
v.  Robinson,  96  N.  C.  28.  1  S.  E. 
781.  The  defendant's  counsel  relied 
on  Levenson  v.  Elson,  88  N.  C.  182; 


637 


§§  423a,  424        Injunctions  Against  Feaud. 

been  dissolved,  and  the  remaining  partner  is  selling  goods  of  the 
firm  for  which  the  purchase  price  is  owing,  there  is  no  abuse  of 
judicial  discretion  in  enjoining  such  sales  and  appointing  a  re- 
ceiver, on  the  filing  of  a  creditors'  bill,  on  condition  that  the  debtor 
may,  by  giving  bond,  retain  possession  and  continue  the  sales.68 
And  where  a  joint  or  common  interest  in  an  estate  exists  in  several 
persons,  and  one  of  them  purchases  an  adverse  claim  against  the 
estate  for  the  purpose  of  depriving  the  others  of  their  interests, 
it  is  decided  that  an  attempt  to  enforce  such  claim  by  the  pur- 
chaser will  be  prevented  by  injunction.67 

§  423  a.  Fraud  by  administrator. — When  the  administrator  of 
an  estate,  and  other  persons  enter  into  a  conspiracy  and  institute 
proceedings  to  procure  the  sale  of  the  property  of  the  estate  for 
their  own  benefit,  upon  fraudulent  claims  allowed  by  the  adminis- 
trator, a  court  of  equity  has  jurisdiction  to  arrest  such  proceeding 
in  the  probate  court,  in  which  they  were  instituted,  by  injunction.68 
And  it  is  decided  that  ejectment  brought  by  an  administrator,  at 
the  instance  of  persons  not  in  privity  with  him,  in  order  to  give 
them  the  intestate's  title  to  the  land,  they  having  no  title  of  their 
own,  will  be  enjoined  at  the  instance  of  the  person  in  possession.69 

§  424.  Injunctive  relief  lost  by  laches. — The  party  alleging 
fraud  may  disentitle  himself  to  injunctive  relief  by  long  acquies- 
cence. The  victim  must  file  his  bill  promptly  on  discovery  of  the 
fraud.70    It  would  be  an  obvious  hardship  to  have  to  uphold  the 

Rheinestein  v.  Bixby,  92  N.  C.  307.  66.  Baker  v.  Mills,  81  Ga.  342,  » 

In  these   cases,   the   application  was  S.  E.  1100. 

for  an  injunction   and   receiver,   but  67.  McGranighan      v.       McGrani- 

here  the  trustee  is  simply  restrained  ghan,  19  Pa.  Ct.  Co.  Ct.  R.  75. 

from   disposing  of  the   fund,   within  68.  Larue    v.     Friedman,   49    Cal. 

the  jurisdiction  of  the  court,  pending  278.    See  Pierce  v.  Jones,  23  Ga.  374. 

the  action.     This  case  comes  within  69.  Pierce  v.  Jones,  23  Ga.  374. 

the  rule  applied  in  Harrison  v.  Bray,  70.  East  Newark  Co.  v.  Gilbert,  12 

92  N.  C.  488;  Ellett  v.  Newman,  92  N.    J.    Eq.    78.      Sufficient    diligence 

N.  C.  519;  Whittaker  v.  Hill,  96  N.  was  shown  in  Link  v.  Link,  48  Mo. 

C.  2,  1  S.  E.  639 ;  Lumber  Co.  v.  Wal-  App.      345,      the     bill      being     filed 

lace,  93  N.  C.  22."  promptly    on    discovery,    though    the 

638 


Injunctions  Against  Fraud. 


§425 


good  faith  of  transactions  long  after  the  participants  therein  were 
dead,  and  the  documents  connected  therewith  were  destroyed  or 
lost.71 


§  425.  Dissolution  on  answer   where   bill   charges   fraud. — 
Where  the  gravamen  of  a  petition  for  an  injunction  is  fraud,  the 


fraud  had  been  practiced  long  before. 
71.  It  is  said  in  Hammond  v.  Hop- 
kins, 143  U.  S.  244,  250,  12  S.  Ct. 
418,  36  L.  Ed.  134:  "  No  rule  of  law 
is  better  settled  than  that  a  court  of 
equity  will  not  aid  a  party  whose  ap- 
plication is  destitute  of  conscience, 
good  faith,  and  reasonable  diligence, 
but  will  discourage  stale  demands 
for  the  peace  of  society,  by  refusing 
to  interfere  where  there  have  been 
gross  laches  in  prosecuting  rights,  or 
where  long  acquiescence  in  the  as- 
sertion of  adverse  rights  has  oc- 
curred. The  rule  is  peculiarly  ap- 
plicable where  the  difficulty  of  doing 
entire  justice  arises  through  the 
death  of  the  principal  participants 
in  the  transactions  complained  of,  or 
of  the  witness  or  witnesses,  or  by 
reason  of  the  original  transactions 
having  become  so  obscure  by  time  as 
to  render  the  ascertainment  of  the 
exact  facts  impossible.  Each  case 
must  necessarily  be  governed  by  its 
own  circumstances,  since,  though  the 
lapse  of  a  few  years  may  be  sufficient 
to  defeat  the  action  in  one  case,  a 
longer  period  may  be  held  requisite 
in  another,  dependent  upon  the  situa- 
tion of  the  parties,  the  extent  of 
their  knowledge  or  means  of  informa- 
tion, great  changes  in  values,  the 
want  of  probable  grounds  for  the  im- 
putation of  intentional  fraud,  the  de- 
struction of  specific  testimony,  the 
absence  of  any  reasonable  impediment 
or  hindrance  to  the  assertion  of  the 
alleged  rights,  and  the  like.     Marsh 


v.  Whitmore,  21  Wall.  178,  22  L.  Ed. 
482;  Lansdale  v.  Smith,  106  U.  S. 
391,  1  Sup.  Ct.  Rep.  350,  27  L.  Ed. 
219;  Norris  v.  Haggin,  136  U.  S.  386, 

10  Sup.  Ct.  Rep.  942,  34  L.  Ed.  424; 
Mackall  v.   Casilear,   137   U.  S.  556, 

11  Sup.  Ct.  Rep.  178,  34  L.  Ed. 
776;  Hanner  v.  Moulton,  138  U.  S. 
486,  11  Sup.  Ct.  Rep.  408,  34  L. 
Ed.  1032.  We  think  that  the  cir- 
cumstances disclosed  here  require  the 
application  of  this  salutary  rule  to 
the  attack  upon  the  settlement.  That 
settlement  was  made  between  Sweet- 
ser  and  the  active  executor,  Miner, 
both  of  whom  are  dead.  The  papers 
were  in  the  handwriting  of  the  book- 
keeper Lytle,  and  he  is  dead.  The 
deeds  of  December  8th  and  11th  were 
witnessed  by  Lytle  and  Kentner,  and 
Kentner  is  dead.  The  release  was 
witnessed  by  Lytle  and  George  W. 
Ewing,  one  of  the  heirs,  and  Ewing 
is  dead.  The  books  and  papers  which 
might  have  shed  light  upon  the 
transaction  were  destroyed  by  Miner 
with  the  knowledge  and  consent  of 
the  then  trustee,  Holladay,  before  the 
bill  was  filed,  though  not  until  16  or 
19  years  after  the  settlement.  There 
was  no  adequate  evidence  of  actual 
fraud,  the  instruments  were  duly  re- 
corded, the  means  of  information 
were  originally  abundant,  no  conceal- 
ment or  suppression  was  shown,  and 
the  record  demonstrates  the  utter 
impracticability  of  restating  an  ac- 
count between  the  partners.  Evi- 
dence was  given  on  both  sides  as  to 


639 


425 


Injunctions  Against  Fraud. 


preliminary  injunction  will  not  be  dissolved  upon  the  answer, 
as  of  course,  even  though  it  fully  denies  the  allegations  of  the 
petition.72  Bat  the  charge  of  fraud  may  be  so  successfully  met  by 
the  answer  and  opposing  affidavits,  that  the  injunction  should  not 
be  continued.     It  is  a  matter  of  sound  judicial  discretion.73 


the  value  of  the  property  in  1866,  and 
thereafter,  but  it  fails  to  convince  us 
that  at  the  ime  of  the  settlement  the 
value  of  the  half  conveyed  to  Sweet- 
ser  was  so  great  as  to  raise  any  seri- 
ous suspicion  of  fraud  in  that  con- 
nection; and  it  is  apparent  there- 
from that  17  years  after,  when  the 
purchase  was  made  by  the  company, 
the  value  had  largely  appreciated, 
while  the  enterprise  upon  which  the 
company  then  embarked  imparted  an 
immense    speculative    increase." 

72.  Walker  v.  Stone,  70  Iowa,  103, 
30  N.  W.  39,  per  Adams,  C.  J. :  "  In 
Stewart  v.  Johnston,  44  Iowa,  435,  it 
was  said:  'The  general  rule  doubt- 
less is,  that  where  all  the  material 
allegations  of  the  injunction  peli'iion 
are  fully  and  satisfactorily  denied  in 
the  answer,  upon  the  defendant's  per- 
sonal knowledge,  the  preliminary  in- 
junction, if  one  has  been  allowed,  will 


be  denied  on  motion.  But  to  this  rule 
there  are  some  exceptions,  ana  one 
of  them  is  where  the  gravamen  of  the 
petition  is  fraud.'  Citing  Sinnett  v. 
Moles,  38  Iowa,  25 ;  Dent  v.  Summer- 
lin.    12   Ga.   5. 

See  §  332  herein. 

73.  In  an  action  by  a  tax-payer 
to  enjoin  the  erection  of  a  bridge  by 
a  town,  which  it  had  been  authorized 
to  build  by  the  county  board,  plain- 
tiff charged  that  the  whole  proceed- 
ing for  building  the  bridge  was  a 
conspiracy  to  divert  the  public  money 
to  the  private  purpose  of  draining 
certain  swamp  lands,  but  the  charge 
was  denied  by  the  answer,  and  con- 
troverting affidavits  filed  by  defend- 
ants. Held,  insufficient  to  uphold  a 
preliminary  injunction.  Barker  v. 
Town  of  Oswegatchie,  16  N.  Y.  Sapp. 
727. 


640 


Relating  to  Conteacts. 

CHAPTER  XIII. 

Relating  to  Contracts. 

SECTION  426.  Contracts  against  public  policy.  ,„_... 

427.  Ultra  vires  contract  not  to  be  enforced  by  injunction. 

428.  Injury  to  be  threatened. 

429.  Inadequacy  of  legal  remedy  to  be  shown. 

430.  Same  subject. 

430a.  Effect  of  provision  for  liquidated  damages. 
431    Complainant  must  have  performed— Clean  hands. 

432.  Determining  right  to  enjoin  contract  after  its  expiration. 

433.  Conditional  and  incomplete  contracts. 

434.  Same  subject— Railroad  contracts. 

435.  Unfair  and  involved  contracts. 

436.  Contracts  conferring  exclusive  rights. 

437.  Same  subject.  _  _ 
437a.  Same  subject— Gas  contracts  with  municipality. 
437b.  Gas   contracts— Generally— Electricity. 

438.  Coal  mine  contracts. 

439.  Grants  of  easements. 
439a.  Contract  to  supply  water. 

440.  Enjoining  assignee  of  contract— Tenant. 
440a.  Against  one  not  party  to  a  contract. 

441.  Taxpayers'  actions  to  restrain  or  enforce  contracts. 

442.  Same  subject. 

443.  Injunctions  in  aid  of  specific  performance. 

444.  Same  subject— When  injunction  lies. 

445.  Same  subject— When  contract  uncertain. 

446.  Exceptions  to  general  rule— Railroad  contracts. 

447.  Specific  performance  of  real  contracts— Discretion. 

448.  When  mutuality  is  wanting. 

449.  Contracts  affecting  the  public. 

450.  Enforcing  parol  agreement  to  devise. 

451.  Enforcing  implied  contracts  by  injunction-Trade  secrets. 

452.  Enforcing  contracts  for  personal  service. 

452a.  Enforcing  contracts  for  personal  service— Actors. 

453.  Same  subject— Baseball  players. 

454.  Same  subject — Acrobats. 

455.  Same  subject— Insurance  agents. 

456.  Same  subject— Author   and  dramatist. 
456a.  Partners. 

457.  Enforcing  negative  covenants— Implication  of. 

458.  Enforcing  trusts  by  injunctions. 

459.  Usurious  contracts. 

460.  Gaming  contracts. 

641 
41 


426 


Relating  to  Contracts. 


Section  426.  Contracts  against  public  policy. — The  general 
rule  is  that  in  the  absence  of  a  statutory  prohibition  the  law  will 
not  readily  pronounce  a  contract  invalid,  on  the  ground  of  its  being 
opposed  to  public  policy ;  but  if  it  is  of  such  a  nature  that  it  can- 
not be  carried  into  execution  without  reaching  beyond  the  parties, 
and  resulting  in  injury  to  the  community,  it  will  be  declared  void 
and  will  not  be  enforced  from  a  due  regard  to  the  public  welfare.1 
Thus  where  a  statute  provided  for  the  publication  of  the  laws  in 
the  newspaper  of  a  county  having  the  largest  circulation,  and 
authorized  the  governor  and  certain  other  public  officers  to  select 
the  newspaper,  an  agreement  between  the  owners  of  two  county 
newspapers  in  evasion  of  the  statute  was  held  to  be  void  as  against 
public  policy,  and  therefore  a  court  of  equity  would  not  aid  in  its 
enforcement.  Neither  a  court  of  equity  or  law  will  enforce  con- 
tracts which  contravene  a  statute  or  are  opposed  to  public  policy 
and  morality.2    No  cause  of  action  can  arise  out  of  an  illegal  con- 


1.  Hinnen  v.  Newman,  35  Kan. 
709,  12  Poe,  144;  Fuller  v.  Dame,  18 
Pick.  (Mass.)  472;  Frost  v.  Belmont 
6  Allen  (Mass.),  152,  162;  Gulick  v. 
Ward,  10  N.  J.  Law,  87;  Egerton  v. 
Brownlow,  4  H.  L.  Cas.  235 ;  Reg- 
istering Co.  v.  Sampson.  L.  R.  19 
Eq.   462. 

Execution  of  a  contract  to 
care  for  a  person  afflicted  with 
leprosy  may  be  enjoined  where  it 
appears  that  a  fulfillment  of  the  con- 
tract would  tend  to  spread  the  dis- 
ease. Baltimore  v.  Fairfield  Imp. 
Co.,  87  Md.  352,  39  Atl.  1081,  40  L. 
R.  A.  494. 

2.  Brooks  v.  Cooper,  50  N.  J.  Eq. 
761.  26  Atl.  978,  per  Lippineott,  J.: 
"  All  contracts  prejudicial  to  the  in- 
terest of  the  public,  such  as  contracts 
lending  to  prevent  competition,  when- 
ever the  statute  or  any  known  rule  of 
law  requires  it.  are  void.  1  Add. 
Cont.  263.  The  statute  here  was  in- 
tended to  encourage  rivalry  as  to  the 
matter  of  the  circulation  of  the  news- 


paper intended  for  selection,  and  the 
policy  of  the  statute  was  the  greater 
benefit  to  the  public  in  the  selection, 
when  it  declared  that  the  matter  of 
extent  of  circulation  should  be  re- 
garded; and  any  contract  tending  to 
interfere  with  the  beneficial  opera- 
tion of  the  statute  was  unlawful,  as 
against  the  policy  of  the  law.  Gulick 
v.  Ward!  10  N.  J.  Law,  87;  Jones  v. 
Randall,  Cowp.  39;  Blachford  v. 
Preston,  8  T.  R.  95;  Mitchell  v. 
Smith,  1  Bin.  120.  Chief  Justice 
Kirkpatrick,  in  Sterling  v.  Sinnick- 
son,  5  N.  J.  Law,  756,  declared  that 
if  the  consideration  be  against  public 
policy  it  is  insufficient  to  support  the 
contract;  and  Justice  Russell,  in  the 
same  case,  said:  'It  is  a  general 
principle  that  all  obligations  for  any 
matter  operating  against  the  public 
policy  and  the  interests  of  the  nation 
are  void.'  There  are  many  illusra- 
tions  of  the  application  of  this  prin- 
ciple, closely  allied  to  the  present 
case.     An  agreement  to  withdraw  an 


642 


Relating  to  Contbacts. 


§426 


tract  and  the  courts  will  leave  the  parties  where  it  finds  them  under 
the    rule  expressed    in   the   maxim,    ex   turpi   causa    non  oritur 


election   petition  in  consideration  of 
money  was  void.     Coppock  v.  Bower, 
4  Mees.  &  W.  361.     A  note  executed 
in  consideration  of  the  payee  agree- 
ing to  resign  a  public  office  in  favor 
of  the  maker,  and  using  his  influence 
to  appoint  the   latter's  successor,   is 
void.     Meacham  v.  Dow,  32  Vt.  721. 
So,   to  the  same  effect,  upon  a  con- 
tract of  a   like   nature  and   quality, 
will  be  found  in  the  case  of  Parsons 
v.  Thompson,   1  H.  Bl.   322.     A  note 
given  in  consideration  or  forbearance 
of  bidding  at  sheriff's  sale  of  real  es- 
tate was  held  to  be  without  consid- 
eration, on   the  ground  that  it  was 
the    policy   of   the   law  to  encourage 
bidding  at  sales  on  execution.    Jones 
v.   Caswell,   3   Johns.   Cas.   29.     The 
policy    of    the    law    encourages    free 
competition,  and  contracts  in  avoid- 
ance  of   that   policy  are   void.     Id. 
Doolin     v.     Ward,     6     Johns.     194 
Thompson  v.  Davies,  13  Johns.  112 
Bank  v.  Sprague,  20  N.  J.  Eq.  160 
Morris  v.   Woodward,  25    N.   J.    Eq. 
32.      So   in   relation   to   contracts   to 
control    public    officials    or    electors, 
with  an  illegal  tendency.     Thomas  v. 
Edwards,  2  Mees.  &  W.  218.    Agree- 
ments  to  obtain  pardons.     Hatzfield 
v.  Gulden,  7  Watts,  153;   Kribben  v. 
Haycraft,  26  Mo.  396;  State  v.  John- 
son, 52  Ind.  197;  Haines  v.  Lewis,  54 
Iowa,  301,  6  N.  W.  495.     Contracts 
for  services  known  as  '  lobby  services.' 
Trist   v.   Child..   21    Wall.   441,   22   L. 
Ed.  623.      Contracts  for  moneys  lent 
to   another    to   aid    him    in    securing 
an   office.      Meguire   v.   Corwine.    101 
U.    S.    108,    25    L.    Ed.    899.       Con- 
tracts for  service  of  a  canvasser  at  a 
primary  election.     Keating  v.  Hyde, 
23  Mo.  App.  555.     A  promise  of  re- 


ward for  influence  to  secure  an  office. 
Nichols  v.  Mudgett,  32  Vt.  546.     A 
promise  to  pay  the  director  of  a  cor- 
poration to  resign.  Guernsey  v.  Cook, 
120    Mass.    501;    Keel    v.    Drake,   28 
Kan.    265;    Forbes   v.    McDonald,    54 
Cal.    98.     Assignment   of   salary  not 
due.      Bliss    v.    Lawrence,   58    N.    Y. 
442.      The    unearned    half-pay    of    a 
retired    army    officer    is    not    assign- 
able.    Schwenk  v.  Wyckoff,  46  N.  J. 
Eq.  560,  20  Atl.  259.     An  agreement 
to    renounce    an    executorship.      Elli- 
cott  v.  Chamberlin,  38  N.  J.  Eq.  604. 
An    agreement    on    the    part    of    a 
caveator  to  withdraw  his  opposition 
to  the   laying  out  of  a  public  road. 
Smith   v.   Applegate,   23   N.  J.    Law, 
352.    These  are  instances  of  contracts 
in  contravention  of  sound  public  pol- 
icy   and    therefore    void.       Any   con- 
tracts which  have  for  their  object  the 
influencing  the  action  of  public  offi- 
cials are  void  as  against  public  pol- 
icy.    Ayer  v.  Hutchins,  4  Mass.  370; 
1  Add.  Cont.,  §  253,  p.  388,  note   1. 
An   agreement  whose   object  or   ten- 
dency is  to  influence  any  officer  of  the 
State  in  the  performance  of  a  legal 
duty,  partially  or  completely,  is  void. 
Lucas  v.  Allen,  80  Ky.  681;   O'Hara 
v.    Carpenter,    23    Mich.    410;    Caton 
v.  Stewart,  76  N.  C.  357.     It  is  dis- 
tinctly   held   that   an   agreement   for 
compensation    for    procuring    a    con-  % 
tract    from    the    government    of    our  5. 
own   or   that   of   another   country   is 
against  public  policy,  and  void.    Tool 
Co.   v.    Norris,    2    Wall.    45.     17   L. 
Ed.     86S;     Oscanyan    v.     Arms    Co., 
103   U.   S.   261.    26   L.   Ed.   539.     An 
agreement     between    two     candidates 
for   the    same    office,    that   one    shall 
withdraw,  and  the  other,  if  successful 


643 


§426 


Relating  to  Contracts. 


actio.3  A  contract  which  is  void  "because  it  violates  Sunday  laws  will 
not  be  enforced  by  injunction.4  Thus  where  an  agreement  to  sell 
land  was  made  on  Sunday  and  part  of  the  purchase  money  was  paid 
on  that  day  the  transaction  was  held  to  be  void  and  a  bill  to  compel 
the  vendor  to  give  a  conveyance  was  dismissed.5  Where  a  contract 
is  void  at  law  for  want  of  power  to  make  it,  a  court  of  equity  has 
no  jurisdiction  to  enforce  it,  or,  in  the  absence  of  fraud,  accident 
or  mistake,  to  so  modify  it  as  to  make  it  legal  and  then  enforce  it. 
And  where  a  contract  or  transaction  is  declared  void  because  not  in 
compliance  with  express  statutory  or  constitutional  provisions,  a 
court  of  equity  cannot  interpose  to  give  it,  or  any  part  of  it, 
validity.6  And  the  almost  universal  rule  is  that  whenever  the 
rights  or  situation  of  parties  are  defined  and  established  by  law, 
equity  has  no  power  to  change  that  situation  or  unsettle  those 


in  the  attempt  to  obtain  the  office, 
shall  divide  the  fees  with  him,  is 
void  as  against  sound  public  policy. 
Gray  v.  Hook,  4  N.  Y.  449;  Hunter 
v.  Nolf,  71  Pa.  St.  282;  Osborne  v. 
Williams,  18  Ves.  379;  Ashburner  v. 
Parrish,  81  Pa.  St.  52;  Gordon  v. 
Dalby,  30  Iowa,  223.  All  agreements, 
for  financial  consideration,  to  con- 
trol or  influence  the  business  opera- 
tions of  the  government,  or  the  ap- 
pointment of  public  officers,  are  void 
as  against  public  policy,  without  ref- 
erence to  the  question  whether  im- 
proper measures  are  contemplated  or 
used  in  their  execution.  The  law 
looks  to  the  general  tendency  of  such 
agreements,  and  it  closes  the  door  to 
temptations,  by  refusing  them  recog- 
nition in  the  courts.  Tool  Co.  v. 
Norris,  2  Wall.  45,  17  L. 
Ed.  868.  Seee  collection  of  de- 
cisions in  note  by  Hare  &  Wallace, 
1  Smith,  Lead  Cas.,  pt,  1,  p.  676, 
etc.,  down  to  the  year  1866.  and  a 
further  collection  of  leading  cases  in 
notes  to  volume  3,  p.  875,  etc.,  Amer. 
&  Eng.   Enc.   Law."     As  to   cases   in 


which  contracts  are  contrary  to  pub- 
lic policy  because  in  contravention 
of  the  provisions  of  some  public 
statute,  see  Jackson  v.  Davidson,  4 
Barn.  &  Aid.  695;  Rogers  v.  King- 
ston, 10  Moore,  102,  2  Bing.  441; 
Murray  v.  Reeves,  8  Barn.  &  C.  425; 
Hall  v.  Dyson.  16  Jur.  270.  21  L.  J. 
Q.  B.  (N.  S.)  224;  Hills  v.  Mitson,  8 
Exch.  758;  Cannon  v.  Cannon,  26  N. 
J.  Eq.  316.  And  a  contract  may  be 
illegal  although  not  in  contravention 
of  the  specific  directions  of  a  statute, 
if  it  be  opposed  to  the  general  policy 
and  intent  thereof.  Staines  v.  Wain- 
wright,  6  Bing.  N.  C.  174;  Philpott 
v.  St.  George's  Hospital,  6  H.  L.  Cas. 
338,  347;  DeBegnis  v.  Armistead,  10 
Bing.   110. 

3.  Vulcan  Powder  Co.  v.  Hercules 
Powder  Co.   96  Cal.  510,  31  Pac.  581. 

4.  Nibert  v.  Baghurst,  47  N.  J.  Eq. 
201,  25  Atl.   474. 

5.  Nibert  v.  Baghurst,  47  N.  J. 
Eq.  201,  25  Atl.  474.  And  see  Eyno 
v.   Darby,  20   N.   J.   Eq.  231. 

6.  Hedges  v.  Dixon  County,  150  U. 
S.  182.   37  L.  Ed.  1044,   14  Sup.  Ct.  71. 


644 


Eelating  to  Contracts.  §§  427,  428 

rights,  and  in  all  such  cases  the  maxim  equitas  sequitur  legem  is 
strictly  applicable.7 

§  427.  Ultra  vires  contracts  not  to  be  enforced  by  injunction. 

— Where  a  contract  is  ultra  vires  a  court  of  equity  will  not  interfere 
by  injunction  so  as  to  enforce  its  execution.  So  where  two  cotton 
compress  companies  made  an  agreement  to  consolidate,  which  was 
beyond  their  corporate  powers,  and  pending  the  procurement  of  a 
charter  for  the  consolidated  company  both  plants  were  put  into 
the  hands  of  a  governing  committee  to  manage,  and  subsequently 
the  stockholders  of  one  company  voted  against  consolidation,  and 
it  was  proceeding  to  act  in  disregard  of  the  agreement,  when  the 
other  company  obtained  an  injunction  against  it  to  restrain  any 
interference  with  the  action  of  the  governing  committee,  it  was 
held  on  appeal  that  the  lower  court  erred  in  granting  and  per- 
petuating such  injunction,  as  it  in  effect  specifically  executed  an 
ultra  vires  contract.8 

§  428.  Injury  to  be  threatened. — In  accordance  with  the  gen- 
eral rule  for  the  administration  of  relief  in  equity  before  con- 

7.  Magniac  v.  Thomson,  15  How.  court  the  plaintiff  may  recover  to  the 
299,  14  L.  Ed.  696.  And  see  Aetna  extent  of  the  henefit  received  by  the 
Ins.  Co.  v.  Middleport,  124  U.  S.  defendant  from  the  execution  of  the 
534,  8  S.  Ct.  625,  31  L.  Ed.  537;  agreement  by  the  plaintiff.  Pennsyl- 
Litchfield  v.  Ballou,  114  U.  S.  190,.  5  vania  R.  Co.  v.  St.  Louis,  A.  &  T.  R. 
S.  Ct.  820,  29  L.  Ed.  132.  Co.,     118    U.     S.    290,    6     Sup.     Ct. 

8.  Greenville  Compress  Co.  v.  1094,  30  L.  Ed.  83;  Davis  v.  Rail- 
Planter's  Compress  Co.  (Miss.),  13  road,  131  Mass.  258;  Pearce  v.  Rail- 
So.  879,  per  Cooper,  J.:  "The  road,  21  How.  (U.  S.)  441,  16  L.  Ed. 
agreement  between  the  directors  of  184;  Railroad  Co.  v.  Riche,  L.  R.  7  H. 
the  respective  companies  was  clearly  L.  653,  L.  R.  9  Exch.  224;  In  re 
beyond  the  corporate  powers  of  either  Cork  Co.,  4  Ch.  App.  748.  The  chan- 
company  to  make,  and  it  had  not  been  cellor,  by  the  very  extraordinary 
fully  executed  when  the  appellant  course  pursued  in  this  case,  has  not 
withdrew  from  it.  .  .  .  The  de-  only  specifically  executed  the  ultra 
cided  weight  of  authority  in  England  vires  agreement,  but  has  done  it  by 
and  America  is  that  no  action  lies  a  peremptory  injunction  by  taking 
on  the  invalid  contract;  that  no  de-  the  property  of  the  appellant  from 
cree  can  be  made  by  a  court  of  equity  its  possession,  and  turning  it  over 
for  its  specific  performance,  nor  a  to  persons  not  parties  to  the  suit,  and 
recovery  had  at  law  for  its  breach;  who  were  not  appointed  receivers  of 
but  that  by  proceeding  in  the  proper  the  court." 

645 


§'429 


Relating  to  Contracts. 


sidered,9  an  injunction  will  not  be  granted  to  prevent  the  breach 
of  a  contract  unless  an  actual  and  not  merely  a  conjectural  injury 
to  the  plaintiff  is  threatened,  and  will  not  be  granted  to  prevent  a 
merely  theoretical  violation  of  his  rights.10  So  a  preliminary  in- 
junction will  not  be  granted  to  compel  the  lessees  of  an  opera 
house  to  allow  the  complainants  to  use  the  house  in  accordance  with 
a  contract  therefor,  where  such  injunction  would  compel  the  lessees 
to  break  a  similar  contract  made  by  them  with  an  innocent  third 
party,  and  the  complainants  cannot  use  the  house  with  profit  to 
themselves.11  The  issuance,  however,  of  a  preliminary  injunction 
will  not  necessarily  be  prevented  by  the  fact  that  the  amount  of 
damages  which  may  result  from  a  breach  of  a  contract  is  uncer- 
tain.12 And  if  a  bill  for  an  injunction  pendente  lite  shows  the 
existence  of  a  contract  right  and  a  probability  that  such  right  will 
be  defeated  it  is  sufficient.10 

§  429.  Inadequacy  of  legal  remedy  to  be  shown. — An  injunc- 
tion to  prevent  the  breach  of  a  contract  is  a  negative  specific 


9.  §  17  ante. 

10.  The  plaintiff  was  a  member  of 
a  "musical  mutual  protective  union," 
one  of  whose  by-laws  provided  that 
every    member    must    refuse    to    per- 
form in  any  orchestra  in  which  any 
person  is  engaged  who  is  not  a  mem- 
ber in  good   standing,   except  organ- 
ists   and    directors    of    musical    soci- 
eties and  members  of  traveling  com- 
panies.    Plaintiff  was  a  director  of  a 
musical   society,    and   manager   of   a 
traveling  company.     He  and  certain 
members  of  his  company,  members  of 
said  union,  were  notified  by  the  di- 
rectors of  the  union  to   appear  and 
show  cause  why  they  should  not  be 
fined  for  a  violation  of  said  by-law. 
Held,  that  the  injury  threatened  was 
conjectural    only,   and   not   a   ground 
for  an  injunction  against  said  direct- 
ors.    Thomas   v.   Musical   Mut.   Pro- 
tective Union,  24  N.  E.  24,   121   N. 
Y.  45. 


11.  Foster  v.  Ballenberg,  43  Fed. 
821.  Complainant  railroad  company, 
having  no  connection  by  rail  with 
defendant's  stock-yards,  secured  the 
services  of  a  connecting  road  in 
transferring  stock  shipped  over  its 
road.  The  price  of  such  service  be- 
ing raised,  complainant  began  trans- 
ferring by  means  of  floats,  but  de- 
iendants  refused  to  receive  stock  so 
transferred,  or  permit  the  floats  to 
land  at  their  wharves.  On  applica- 
tion for  a  preliminary  mandatory  in- 
junction to  defendants  to  receive  its 
freight,  held  that  the  facts  showed  no 
such  pressing  necessity  as  to  require 
such  writ.  Delaware,  L.  &  W.  R.  Co. 
v.  Central  Stock  Yard  &  Transit  Co., 
45  N.  J.  Eq.  50,  12  Atl.  374.  And 
see  Delaware,  etc.,  R.  Co.  v.  Central 
Stock  Yard  Co.,  43  N.  J.  Eq.  71,  605. 

12.  Williams  v.  Montgomery,  148 
N.  Y.  519,  43  N.  E.  57. 

13.  Sanitary  Reduction  Works  v. 


646 


Relating  to  Con  tracts. 


§429 


enforcement  of  it  and  the  test  of  the  jurisdiction  of  equity  to  grant 
such  an  injunction  is  the  inadequacy  of  the  legal  remedy  of  dam- 
ages,14 for  where  there  is  an  adequate  remedy  at  law  for  the  breach 
of  a  contract  a  court  of  equity  will  not,  as  a  general  rule,  lend  its 
aid  to  restrain  a  breach.10  So  an  agreement  by  a  turnpike  company 
to  give  the  owner  of  a  ranch  the  right  to  use  the  road  free  of  toll 


California    Reduction    Co.,    94    Fed. 
693. 

14.  Dills  v.  Doebler,  02  Conn.  366, 
20  Atl.  398,  per  Andrews,  C. 
J. :  "  The  universal  test  of  the 
jurisdiction  of  a  court  of  equity 
to  restrain  the  breach  of  a  con- 
tract is  the  inadequacy  of  the  legal 
remedy  of  damages.  An  injunction 
to  prevent  the  breach  of  a  contract  is 
a  negative  specific  enforcement  of 
that  contract;  and  tlie  jurisdiction  of 
equity  to  grant  such  an  injunction  is 
substantially  coincident  with  its 
jurisdiction  to  compel  a  specific  per- 
formance by  an  affirmative  decree. 
In  either  case  a  court  of  equity  can- 
not exercise  jurisdiction  unless  the 
injury  apprehended  from  a  violation 
of  the  contract  is  of  such  a  nature  as 
not  to  be  susceptible  of  adequate  dam- 
ages at  law.  Pom.  Eq.  Jur.,  §  1341; 
Morris  Canal  &  Banking  Co.  v.  So- 
ciety for  Manufactures,  5  X.  J.  Eq. 
203;   Akrill  v.  Selden,   1   Barb.  316." 

See,  also,  Harlow  v.  Oiegonian 
Pub.  Co.  (Oreg.  1904),  78  Pac.  737. 

Where,  in  reliance  upon  a 
contract  to  supply  patented 
machinery,  a  party  purchased  ma- 
terial and  entered  into  contracts  to 
supply  the  product  of  such  machin- 
ery to  others,  a  breach  of  such  con- 
tract may  be  enjoined  though  it  is 
not  capable  of  being  specifically  en- 
forced where  it  appears  that  the 
damages  for  such  breach  cannot  be 
computed.  American        Electrical 


Works  v.  Varley  Duplex  M.  Co.,  26 
R.   I.   295,  58   Atl.   977. 

15.  United  States. — General  Elec. 
Co.  v.  Westinghouse  Elec.  &  M.  Co., 
144  Fed.  458;  James  T.  Hair  Co.  v. 
Huckins,  56  Fed.  366,  5  C.  C.  A.  522, 
12  U.  S.  A  pp.  359.  See  Payne  v. 
United  States  P.  C.  Co.,  90  Fed.  543; 
Burdon  Cent.  S.  R.  Co.  v.  Leverich, 

37  Fed.   67. 

Alabama. — Winter  v.  City  Council, 
93  Ala.  539,  9  So.  366;  Powell  v. 
Central  Plank  Road  Co.,  24  Ala.  441. 

District  of  Columbia. — See  Purcell 
Envelope  Co.  v.  Smith,  26  Wash.  L. 
Rep.  515. 

Illinois. — Builders'  Painting  &  D. 
Co.  v.  Advisory  Board,  116  111.  App. 
264. 

Louisiana. — Seiler  v.  Fairex,  23  La. 
Ann.  397. 

Neio  York. — Fox  v.  Fitzpatrick, 
190  N.  Y.  359,  82  N.  E.  1103;  Close 
v.  Flesher,  8  Misc.  R.  299,  28  N.  Y. 
Supp.  737.  See  Banker  &  Campbell 
Co.  v.  Stimson,  61  Hun,  626,  16  N. 
Y.  Supp.  60;  Niagara  Falls  I.  B.  Co. 
v.  Great  Western  Ry.  Co.,  39  Barb. 
212. 

Pennsylvania. — School  District  v. 
Ohio  Gas  Co.,  154  Pa.  St.  539,  25 
Atl.  868;  Gallagher  v.  Fayette  R.  Co., 

38  Pa.  St.  102. 

Wisconsin. — Converse  v.  Ketchum, 
18    Wis.    202. 

Compare  Christian  Feigenspan  v. 
Nizotek  (N.  J.  1907),  65  Atl.  703, 
wherein  it  is  said  that  the  policy  of 


647 


§  429  Kelatinq  to  Contracts. 

for  all  the  purposes  of  the  ranch,  in  consideration  of  his  giving 
the  company  a  right  of  way  over  the  ranch,  does  not  give  the  ranch 
owner  an  easement  in  the  road,  and  he  is  not  entitled  to  an  injunc- 
tion to  restrain  interference  by  the  turnpike  company  with  his  use 
of  the  road,  when  such  interference  consists  merely  in  demanding 
payment  of  the  regular  tolls,  since  for  such  wrong  he  has  a  suffi- 
cient remedy  by  an  action  for  damages.16  And  where  plaintiff 
engaged  defendants  to  construct  a  macadam  road  on  a  public 
county  road,  reserving  the  right  to  cancel  the  contract  if,  for  any 
reason,  the  work  done  under  it  did  not  satisfy  him,  it  was  held 
that  plaintiff,  having  notified  defendants  to  discontinue  work 
because  of  non-compliance  with  the  contract,  could  not  have  an 
injunction  against  the  further  prosecution  of  the  work  by  defend- 
ants, there  being  an  adequate  remedy  at  law.17  To  maintain  an 
injunction  to  restrain  the  collection  of  the  purchase  money  for 
land,  it  must  at  least  be  shown  that  the  grantor  is  insolvent.18  And 
in  this  connection  it  is  decided  that  the  disposal  of  mining  stock 
by  one  to  whom  the  complainant  has  advanced  money  to  purchase 
the  mines  may  be  enjoined  where  there  was  an  agreement  that  the 
one  advancing  the  money  should  receive  a  certain  proportion  of  the 
stock  and  all  of  such  stock  has  been  issued  to  the  defendant  who  is 

the  law  should  be  to  prevent  a  man  adequate    remedy    at    law.      Cupples 

from   breaking   his   contracts    rather  Envelope    Co.    v.   Lackner,     99    App. 

than  to  leave   the  injured   party  to  Div.   (N.  Y.)  231,  90  N.  Y.  Supp.954. 
his  damages  at  law.  The      terms      of      a      contract 

The  court  will  not  exercise  its  shonld  be  clearly  and  definitely 
power  to  restrain  an  apprehended  established  by  one  who  seeks  to  en- 
injury  resulting  from  a  breach  of  join  its  breach.  Sanders  v.  Brown 
contract  unless  the  petitioner  is  (Ala.  1905),  39  So.  732. 
without  adequate  remedy  at  law,  and  16.  Kellett  v.  Ida  Clayton  Road 
the  contract  itself  is  free  from  doubt  Co.,  33  Pac.  885. 
and  not  uncertain  or  vague  in  its  17.  Shepherd  v.  Groff,  34  W.  Va. 
terms  or  provisions.  Fowler  Utili-  123,  11  S.  E.  997.  See,  also,  Knott 
ties  Co.  v.  Gray  (Ind.  1907),  79  N.  v.  Shepherdstown  Mfg.'  Co.,  30  W. 
E.  897.  Per  Montgomery,  J.,  citing  Va.  790,  796,  5  S.  E.  266;  Surber 
Loy  v.  Madison  Gas  Co.,  156  Ind.  v.  McClintic,  10  W.  Va.  236;  More- 
332,  58  N.  E.  844.  head  v.  DeFord,  6  W.  Va.  316. 

There  shonld  be  an  averment  18.  Wimberg    v.    Schwegeman,    97 

of  facts   showing  that  there   is  no  Ind.  528. 


648 


Relating  to  Contracts.  §  430 

of  doubtful  responsibility  and  who  threatens  to  dispose  of  the 
stock.19 

§  430.  Same  subject. — A  court  of  equity  has  jurisdiction  of 
a  bill  to  enforce  by  injunction  a  written  contract  whereby  defend- 
ants have  covenanted  not  to  manufacture  and  sell  any  machines 
infringing  certain  patents  claimed  by  complainants,  and  under 
which  they  are  making  and  selling  machines,  since  the  continuance 
of  such  violation  would  tend  to  diminish  complainant's  profits  in 
the  business,  for  which  mere  damages,  recoverable  at  law,  would 
not  be  an  adequate  remedy ;  and  in  such  case  the  fact  that  one  of 
the  parties  to  the  contract  is  a  special  or  limited  partner  in  a  firm 
which  is  engaged  in  using  the  infringing  machines  is  no  objection 
to  making  him  a  defendant,  or  enjoining  him  from  continuing  to 
violate  the  contract  in  connection  with  the  firm  although  his  part- 
ners were  not  parties  to  the  contract,  and  cannot  therefore  be  made 
parties  to  the  suit,  and  although  they  will  be  embarrassed  by  an 
injunction  against  him.20  And  where  goods  are  sold  to  a  person 
to  sell  at  not  less  than  a  certain  price  and  he  transfers  them  to 
another  under  a  fraudulent  agreement  with  the  latter  to  enable 
him  to  sell  them  at  a  less  price  and  thus  avoid  the  provisions  of  the 
contract,  it  is  decided  that  the  latter  may  be  enjoined  from  so  sell- 
ing them.21  But  an  injunction  will  not  lie  to  restrain  the  breach 
of  a  contract  whereby  defendant  agreed  that  for  the  term  of  five 
years  he  would  use  plaintiff's  hotel  registers  in  his  business,  and 
no  others,  for  plaintiff  has  an  adequate  remedy  at  law.22 

19.  Rau  v.  Seidenberg;  53  Misc.  sumed  not  to  fall  below  a  certain 
R.  (N.  Y.)  386,  104  N.  Y.  Supp.  798.  amount.     In  an  action  by  the  com- 

20.  American  Box  Machine  Co.  v.  pany  to  restrain  S.  from  using  elec- 
Crosman,  57  Fed.  1021.  trie  lights,  the   petition  alleged  that 

21.  Garst  v.  Charles,  187  Mass.  the  introduction  of  such  lights  upon 
144,   72  N.  E.  839.  said    premises    largely    reduced    the 

22.  Hair  Company  v.  Huckins,  56  amount  of  gas  used  below  the  amount 
Fed.  366.  S  contracted  with  a  gas-  stipulated,  whereby  "  the  company 
light  company,  in  consideration  of  a  will  lose  tlie  benefit  of  said  contract, 
reduced  price  for  gas,  not  to  use  elec-  and  the  gain  and  profit  it  is  entitled 
trie  or  other  material  or  power  for  to  therefrom,  and  will  suffer  irrepar- 
general  illuminating  purposes  on  his  able  damage."  Held,  that  the  peti- 
preniises,    the    quantity   of   gas    con-  tion  did  not  show  that  the  company 

649 


430a 


Relating  to  Contracts. 


§  430a.  Effect  of  provision  for  liquidated  damages. — Tt  is 
clear  from  principles  of  equity  already  fully  considered  in  the  first 
chapter  that  the  breach  of  a  contract  in  restraint  of  trade  will  not 
be  enjoined  where  it  will  cause  but  trifling  injury  to  plaintiff,83 
and  especially  not  in  a  case  where  the  damages  for  a  breach  are 
liquidated  by  the  contract  and  may  be  paid  as  an  alternative.  Thus 
where  a  person  bound  himself  not  to  practice  dentistry  within  a 
designated  town  and  for  a  designated  time,  but  stipulated  that  he 
might  do  so  on  the  payment  of  «$1,000,  injunction  would  not  lie 
to  restrain  him  from  a  breach  thereof,  the  remedy  being  an  action 
at  law  to  recover  the  $1,000;  and  the  fact  that  such  person  was 
insolvent  could  not  ailter  the  respective  rights  of  the  parties  to 
such  contract,  nor  the  remedy  to  be  pursued.24    And  in  determining 


might  not  have  full,  adequate  relief  in 
damages  by  a  suit  at  law,  and  that 
plain  till'  was  therefore  not  entitled 
to  an  injunction.  Steinau  v.  Cincin- 
nati Gas-Light  &  Coke  Co.,  48  Ohio 
St.  324,  27  N.  E.  545,  per  Spear,  J.: 
"  What  would  stand  in  the  way  of 
adequate  damages  being  awarded  by 
a  jury?  The  amount  of  gas  agreed 
to  be  used  each  month,  the  duration 
of  time,  and  the  price  to  be  paid  per 
thousand,  were  all  shown  by  the 
contract.  If  added  to  these  facts  the 
jury  should  be  put  in  possession  of 
the  amount  of  gain  and  profit  the 
company  were  making  per  thousand, 
what  would  prevent  a  clear  ascertain- 
ment of  damages  upon  that  basis? 
Fothcrgill  v.  Rowland,  L.  R.  17  Eq. 
132;  Chicago,  etc.,  R.  Co.  v.  New 
York,  etc.,  R.  Co.,  24  Fed.  516." 

23.  Defendant,  in  consideration  of 
his  employment  by  complainant  as 
collector  in  the  installment  clothing 
business,  agreed  not  to  work  for  any 
other  person  engaged  in  such  busi- 
ness for  a  year  after  his  employment 
by  complainant  should  cease.  He 
only    worked    for    about    five    weeks. 


when  he  left  complainant's  employ, 
and  took  a  similar  position  with  a 
rival  house.  No  special  damage  was 
shown  to  have  been  sull'ered  by  com- 
plainant. Held  that,  if  complainant 
would  suller  any  damage  for  the 
breach  of  contract,  it  would  not  be 
irreparable,  and  would  not  warrant 
an  injunction.  Sternberg  v.  O  Biien, 
48  N.  J.  Eq.  370,  22  Atl.  348. 

As  to  contracts  in  restraint 
of  trade,  see  chap.  XIV  herein. 

24.  Dills  v.  Doebler,  02  Conn.  306, 
26  Atl.  398,  per  Andrews,  C.  J.: 
"  When  the  parties  to  an  agreement 
have  put  into  it  a  provision  for  the 
payment,  in  case  of  a  breach,  of  a 
certain  sum  of  money  which  is  truly 
liquidated  damages,  and  not  a  pen- 
alty— in  other  words,  when  the  con- 
tract stipulates  for  one  of  two 
things  in  the  alternative,  or  on  the 
one  side  the  doing  or  the  not  doing 
of  certain  acts,  and  on  the  other  the 
payment  of  a  certain  sum  in  money 
in  lieu  thereof,  equity  will  not  in- 
terfere but  will  leave  the  party  to 
his  remedy  of  damages  at  law.  Shiell 
v.  McNitt,  9  Paige,   101;   Skinner  v. 


G50 


Relating  to  Contracts.  a§  430 

the  question  whether  in  a  given  case  the  sum  named  is  a  penalty, 
or  liquidated  damages,  courts  give  but  little  weight  to  the  mere 
form  of  words  but  gather  the  intent  from  the  general  scope  of  the 
contract ;  and  as  it  is  difficult  to  estimate  damages  from  the  breach 
of  a  contract,  the  subject  matter  of  which  is  the  carrying  on  of  a 
business,  the  current  of  authority  is  to  treat  the  sum  named  as 
liquidated  damages,  rather  than  as  a  penalty.25  And  where  a 
consideration  of  all  the  facts  in  the  case  leads  to  the  conclusion  that 
it  was  not  intended  by  either  of  the  parties  to  a  contract  that  a 
provision  therein  for  liquidated  damages,  in  case  of  a  breach  by 
one  of  the  parties  not  to  engage  in  business  in  a  certain  toAvn, 
should  be  the  only  price  of  such  breach,  an  injunction  enjoining 
the  breach  may  be  obtained.  In  such  a  case,  however,  it  is  decided 
that  having  asked  for  an  injunction  the  party  waives  his  right  to 
enforce  the  provision  in  the  contract  as  to  liquidated  damages.26 
So  where  a  person,  on  entering  the  service  of  a  banking  company, 
bound  himself  by  a  bonel  to  pay  the  bank  one  thousand  pounds  as 
liquidated  damages  in  case  he  should,  at  any  time  within  two 
years  after  leaving  the  bank,  accept  employment  in  any  other  bank 
within  two  miles  of  the  former  bank,  it  was  held  that  he  could  not 
satisfy  his  obligation  by  paying  the  sum  specified  as  damages,  but 
that  there  was  an  implied  agreement  that  he  would  not  enter  the 
service  of  a  rival  bank,  which  could  be  enforced  by  injunction.27 
And  where  it  appears  that  defendant  has  violated  his  agreement  to 
sell  his  good  will  in  the  practice  of  medicine  and  not  to  practice  in 
a  certain  district  for  a  number  of  years,  and  the  breach  of  the 

Dayton,  2  Johns.  Ch.  52G,  535;  Pom-  25.  Ropes    v.    Upton,    125    Mass. 

eroy,    Eq.    Jur.,     §     447."      Where    a  258. 

bond  was  given  providing  liquidated  26.  Heinz  v.  Roberts  (Iowa,  1907), 

damages  in  the  sum  of  $15,000  for  a  110  N.  W.  1034. 

breach  of  a  covenant,  the  obligee  is  27.  National    Provincial    Bank    v. 

not  confined  to  his  remedy  by  way  of  Marshall,  L.  R.  40  Ch.  D.   112.     In 

damage3  for  the  breach  of  contract,  Gravely   v.    Barnard,    L.    It.    18    Eq. 

but      upon       defendant's      violation  518,    a    similar   bond   by    a    surgeon 

thereof,   is  entitled  to  an  injunction  was   held    to    import    an   agreement 

restraining   him    from   continuing   to  which    could   be   enforced   by   injunc- 

disregard     his    covenant.       Diamond  tion,  and  Jessel,  M.  R.,  on  the  ques- 

Match  Co.  v.  Roeber,  100  N.  Y.  473,  tion  of  a  sufficient  consideration   of 

13  N.  E.  419.  such  bonds  in  restraint  of  trade,  re- 

651 


§431 


Kelating  to  Conteacts. 


contract  has  caused,  and  is  likely  to  cause,  plaintiffs  damage,  and 
defendant  is  insolvent,  plaintiffs  are  entitled  to  an  injunction.28 

§431.  Complainant  must  have  performed;  clean  hands. A 

party  who  seeks  the  aid  of  a  court  of  equity  to  restrain  an  alleged 
breach  of  a  contract  by  the  other  party  thereto  must  have  performed 
his  part  of  the  contract  so  far  as  is  possible,  or  the  court  will  not 
interfere.29  So  where  a  covenant  was  not  intended  as  a  reservation 
by  the  grantor  but  as  a  restriction  to  operate  in  favor  of  the 
adjacent  property  generally,  an  injunction  against  the  violation 
of  the  covenant  will  not  lie  in  favor  of  the  grantor  if  he  has  him- 
self violated  it.30 


ferred  to  Hitchcock  v.  Coker,  6  Ad. 
&  El.  457;  Davis  v.  Mason,  5  T.  R. 
118,  120. 

28.  Pickett  v.  Green,  120  Ind.  584, 
22  N.  E.  737.  See,  also,  Healey  v. 
Dillon,  39  La.  Ann.  503;  Sutton  v. 
Head,  86  Ky.  156;  Egan  v.  Russ,  39 
La.  Ann.  967.  Such  an  agreement 
would  not  be  enforced  if  inequitable 
as,  for  example,  where  one  physician 
had  sold  his  practice  worth  $5. 000  a 
year  for  only  $150.  Thayer  v. 
Younge,  86  Ind.  259. 

29.  United  States. — Pullman's 
Palace  Car  Co.  v.  Missouri,  K.  &  T. 
R.  Co.,  55  Fed.   138. 

Illinois. — Chicago  Municipal  Gas 
L.  Co.  v.  Town  of  Lake,  130  111.  42. 

Kentucky. — Reynolds  v.  Vance,  4 
Bibb    (Ky.),  213. 

Louisiana. — Healy  v.  Allen,  38  La. 
Ann.  867. 

New  Jersey. — Young  Lock  Nut  Co. 
v.  Brownley  Mfg.  Co.,  34  Atl.  947. 

The  ordinary  rule  is  that  it  is 
only  with  regard  to  the  plaintiff's 
rights  against  his  defendant  that  the 
plaintiff  must  come  into  court  with 
clean  hands.  Beekman  v.  Marsters 
(Mass.   1907),  SO  N.  E.   817. 

Where     plaintiff,     an     electric 


company,  entered  into  a  contract 
with  defendant,  an  electrical  subway 
company,  by  which  plaintiff  was  to 
use  defendant's  subways;  paying 
therefor  a  certain  sum  as  rent,  and 
after  several  years'  use  of  the  sub- 
way without  payment  of  rent,  the 
subway  company  demanded  the  rent, 
and  threatened  to  cut  out  and  re- 
move plaintiff's  cables  in  default  of 
its  payment,  it  was  held,  in  an  action 
for  an  injunction  to  restrain  such 
proceedings,  waiving  the  question 
whether  the  court  had  or  had  not 
jurisdiction  to  grant  an  injunction 
under  special  laws  relating  to  the 
subject  matter  of  the  controversy, 
that  plaintiff  could  not  ask  the  in- 
tervenion  of  a  court  of  equity  until 
it  had  paid  whatever  rent  was  due 
before  the  commencement  of  its  pro- 
ceedings. Brush  Elecric  Illuminat- 
ing Co.  v.  Consolidated  Telegraph  & 
Electrical  Subway  Co.,  15  N.  Y. 
Supp.  477. 

30.  A  preliminary  injunction  will 
not  be  awarded  to  a  grantor,  to  re- 
strain the  grantee  of  a  certain  lot 
and  others  from  drilling  an  oil  or 
gas  well  thereon,  in  violation  of  a 
covenant     in     the     deed     from     the 


652 


Kelating  to  Contracts.  §§  432,  433 

§  432.  Determining  right  to  enjoin  contract  after  itc  expira- 
tion.— A  court  of  equity  may  in  some  cases  determine  the  rights 
of  a  part j  to  a  contract  to  an  injunction  after  the  expiration  of  the 
contract.  So  in  an  action  for  an  injunction  to  restrain  defendant 
from  carrying  out  a  contract  with  a  third  party,  in  violation  of  a 
previous  contract  with  plaintiff,  an  arrangement  was  made  by  which 
defendant,  on  giving  an  undertaking  conditioned  to  pay  a  certain 
sum  as  liquidated  damages  if  it  should  be  finally  determined  that 
plaintiff  was  entitled  to  an  injunction,  was  permitted  to  fulfill  her 
contract  with  such  third  party,  and  it  was  held  that,  the  rights  of 
both  parties  having  been  expressly  reserved,  the  court,  even  after 
plaintiff's  contract  had  expired,  would  determine  plaintiff's  orig- 
inal right  to  relief  by  injunction.31  But  where  the  time  for  which 
defendant  covenanted  against  the  erection  of  a  building  other  than 
a  dwelling  expires  before  the  determination  of  a  suit  to  enjoin  the 
erection,  the  decree  must  not  award  ,an  injunction  but  only  damages 
for  the  violation  of  the  restriction  while  it  continued  in  force.32 

§  433.  Conditional  and  incomplete  contracts. — It  is  obvious 
that  a  party  should  not  be  compelled  by  injunction  to  perform  a 
contract,  where  he  shows  that  he  is  unable  to  perform,  and  that  by 
the  terms  of  the  contract  he  might  cancel  it  on  notice  of  his  in- 

grantor,  where  he  has  himself  vio-  such  purpose  only  the  public  ferry 
lated  the  covenant  by  drilling  wells  operated  by  a  private  party  under  a 
in  the  same  addition  in  which  the  lot  lease.  The  ferry  proving  inadequate, 
lies,  and  the  affidavits  of  the  lot-  complainant  commenced  running  its 
owners  in  the  addition  show  that  the  own  boats  for  purposes  of  transporta- 
covenant  was  not  intended  as  a  reser-  tion.  Held,  that  equity  would  not  pro- 
vation  of  the  oil  and  gas,  but  as  a  re-  tect  complainant  from  the  consequence 
striction  to  be  placed  in  all  the  of  its  failure  to  comply  with  the  con- 
deeds  of  lots  sold  in  the  addition,  to  tract,  by  enjoining  the  operators  of 
secure  them,  as  dwelling-places,  from  the  ferry  from  interfering  with  the 
the  annoyances  of  oil  and  gas  wells.  operation  of  complainant's  boats. 
Appeal  of  Acheson,  130  Pa.  St.  Texas  &  P.  Ry.  Co.  v.  Baton  Rouge, 
633,      18      Atl.      873.        See,      also,  36  Fed.  845. 

Hill      v.      Haberkorn,      6      N.      Y.  31.  Duff    v.    Russell,    133    N.    Y. 

Supp.  474.     Complainant,  having  the  678,    31    N.    E.    622,   aff'g    16   N.    Y. 

right  under  its  charter  of  transport-  Supp.  958. 

ing  its  passengers  and  freight  across  a  32.  Langmaid  v.  Reed,   159  Mass. 

river    by    means    of    its    own    boats,  409,  34  N.  E.  593. 
agreed,  for  a  consideration,  to  use  for 

053 


§433 


Relating  to  Contracts. 


ability  to  perform  it  to  the  other  party.33  And  a  similar  rule  should 
be  applied  where  the  contract  was  never  completed  and  it  was 
understood  at  the  time  that  the  party  acting  on  behalf  of  defend- 
ant was  his  mere  representative,  who  had  no  authority  to  complete 
it.34  But  where  one  to  whom  a  party  to  a  contract  for  public  work 
has  been  given  a  power  of  attorney  to  receive  the  money  due  under 
the  contract,  and  the  holder  of  such  power  of  attorney  completes 
the  work  because  of  the  insolvency  of  the  contractor,  the  latter  may 


33.  The  contract,  under  which  de- 
fendant undertook  to  furnish  natural 
gas  as  fuel  to  plaintiff  glass  com- 
pany, provided  that,  in  view  of  the 
uncertainty  attending  the  flow  of 
natural  gas,  the  contract  should  be 
limited  to  the  time  for  which  defend- 
ant, with  due  diligence,  could  fur- 
nish the  gas,  and  should  be  subject 
to  the  rights  of  existing  consumers  to 
the  supply,  domestic  consumers  to 
have  preference  over  all  others;  and 
that  defendant  might  cancel  it  on 
due  notice  to  plaintiff  of  its  inability 
to  perform  it.  Plaintiff  brought  suit  to 
enjoin  defendant  from  cutting  off  the 
supply  of  gas  contracted  to  be  fur- 
nished. Defendant  answered  that  for 
a  year  the  supply  of  gas  from  its 
wells  had  been  falling  off,  and  that, 
after  it  had  vainly  endeavored  to  in- 
crease it  by  boring  new  wells,  it  no- 
tified plaintiff  of  its  probable  inabil- 
ity to  perform  the  contract.  Held, 
that  a  preliminary  injunction  was 
properly  refused.  Thompson  Glass 
Co.  v.  Fayette  Fuel  Gas  Co.,  137  Pa. 
St.  317.  A  natural  gas  company  con- 
tracted that  its  charges  should  not 
exceed  a  schedule,  provided  that  the 
supply  of  natural  gas  should  not  fail 
to  such  an  extent  as  to  render  such 
rates  unreasonably  low.  Held,  that  a 
bill  in  equity  for  an  injunction  to 
restrain  a  violation  of  the  contract, 
which  neglected  to  deny  a  failure  of 


supply  of  gas,  should  be  dismissed  on 
demurrer.  Morck  v.  Pennsylvania 
Gas  Co.,  8  Pa.  Co.  Ct.  Rep.  131.  See, 
also,  Hill  v.  Probst,  120  lnd.  528,  22 
N.  E.  664. 

34.  Complainant  had  an  under- 
standing with  a  representative  of  an 
exposition  company  that  it  was  to 
supply  certain  additional  boilers,  if 
required  for  use  in  the  exposition 
building,  the  boilers  to  be  used  also 
as  exhibits.  The  representative  told 
complainant  that  the  arrangement 
would  have  to  be  submitted  to  the 
company  for  approval,  but  this  was 
never  done.  The  company  was  only 
authorized  to  erect  and  equip  the 
building,  the  control  of  the  exhibits 
being  vested  in  a  commission  ap- 
pointed by  Congress.  Held,  that  com- 
plainant was  not  entitled  to  an  in- 
junction to  prevent  the  use  of  other 
boilers  in  the  building.  Babcock  & 
Wilcox  Co.  v.  World's  Columbian  Ex- 
position Co..  54  Fed.  214,  per  Gross- 
cup,  J.:  "He  and  the  complainants 
probably  thought  there  would  be  no 
difficulty  in  receiving  such  approval, 
but  the  negotiation  certainly  could 
not  have  been  regarded  by  them  as 
final  while  in  this  state  of  possible 
uncertainty.  As  a  matter  of  fact, 
the  proposed  privilege  was  never  sub- 
mitted to  the  council,  and  complain- 
ants were  never  advised  that  it  had 
received  the  approval   of  that   body. 


654 


Relating  to  Contracts.  §  434 

be  enjoined  from  collecting  such  amount.35  Where  an  agreement  is 
not  to  be  deemed  complete  until  certain  parties  have  signed  it, 
those  who  have  signed  it  cannot  claim  that  it  is  merely  inchoate 
after  they  have  shown  by  acting  under  it  that  they  consider  it  com- 
plete.36 Where  a  contract,  as  set  out  in  a  petition  for  a  preliminary 
injunction  for  its  violation,  is  not  sufficient  to  justify  its  issuance, 
one  will  not  be  granted  under  a  second  count  in  the  complaint, 
alleging  a  mistake  in  the  contract,  and  asking  for  its  reformation 
where  equities,  alleged  as  ground  for  its  reformation,  are  denied  in 
the  answer,  but  plaintiff  must  await  the  reformation  of  the  con- 
tract before  he  can  obtain  affirmative  relief  based  on  the  contract 
as  reformed.37 

§  434.  Same  subject ;  railroad  contracts. — A  contract  by  a  rail- 
road company  to  maintain  and  keep  open  two  existing  passageways 
for  stock  under  its  road  through  a  certain  farm  is  sufficiently  cer- 
tain to  entitle  the  owner  of  the  farm  to  an  injunction  against 
violation,  though  the  size,  nature  and  location  of  the  ways  are  not 
stated  in  the  contract ;  as  such  an  injunction  in  effect  operates  as  a 
decree  for  specific  performance.38     And  a  court  of  equity  will  by 

It  is  equally  clear  that  Sargent  had  144  111.  628,  32  N.  E.  291,  per  Shope, 

no  power  to  grant  a  privilege  of  that  J. :      "  It  is  true  as  said  by  counsel 

character.      It   fell    partly,    at   least,  that    to    entitle    a    party    to    specific 

within  the  powers  of  the  commission,  performance  which  is  in  effect  the  re- 

and    there    is    nothing    in    this    case  lief  granted  by  the  decree   rendered, 

showing  that  he  in  any  respect  repre-  the  contract  must  be  clearly  proved 

sented  the  commission.     When  he  an-  and  be  certain  and  unambiguous   in 

nounced  to  the  complainants  that  the  all    its   parts    and   terms."      Long   v. 

matter  of  the  privilege  must  first  go  Long,    118    111.    638,    9    N.    E.    247; 

to  the  council  of  administration,  he,  Clark  v.  Clark,  122  111.  388;   Rector 

in   effect,   expressly  advised  them   of  v.  Rector,  3  Gilm.   (111.)    105.  "When 

the   limitation   upon    his   authority."  the   contract  was   finally   reduced   to 

See,     also,    Olmsted   v.    Michels.     36  writing  and  executed  the   substruct- 

Fed    455  ure    of   the    railroad   had   been   com- 

35.  Dulaney   v.    Scudder,    94   Fed.  pleted  through  appellee's  farm.     The 

6  36  C    C    A.  52.  two  openings  and  no  other  had  been 

36.  Chicago,  etc.,  R.  Co.  v.  New  made  or  left,  and  all  parties  knew 
York,   etc.,  R.   Co.,   24  Fed.  516.  their  character,  size  and  location,  and 

37.  Allison    Bros.    Co.    v.  Allison,  it   was   in   respect   of  these   openings 

7  N.  Y.  Supp.  268.  thus     physically     existing    that     the 

38.  Rock  Island  R.  Co.  v.  Dimick,       parties  contracted  as  it  is  alleged  and 

655 


§435 


Relating  to  Conteacts. 


mandatory  injunction  enforce  specific  performance  of  a  contract 
between  a  street  railway  company  and  a  turnpike  road  company, 
so  as  to  compel  the  former  to  lay  its  roads  at  the  height  and  in  the 
location  specified  in  the  contract,  and  to  construct  a  solid  and 
smooth  surface  between  the  track  and  the  improved  portion  of  the 
road  as  stipulated  in  the  contract.39  A  contract  is  not  so  uncertain 
that  it  cannot  be  enforced  by  injunction  from  the  mere  fact  that  it 
does  not  attend  to  every  detail  which  may  be  involved  in  its  execu- 
tion.40 

§  435.  Unfair  and  involved  contracts. — A  contract  which  is 
wanting  in  mutuality,  or  which  is  unfair  and  oppressive  to  one  of 
the  parties,  will  not  be  enforced  against  him  by  injunction.41  Nor 
will  a  contract  which  is  so  uncertain  and  vague  in  its  terms  that 
it  would  not  be  decreed  to  be  specifically  enforced.42     But  several 


proved.  ...  We  are  of  opinion 
that  the  court  had  power  to  protect 
the  appellee  in  the  enjoyment  of  his 
rights  under  this  contract."  Deere  v. 
Cole,  118  111.  165;  Chicago,  etc.,  R. 
Co.  v.  Hay,  119  111.  493;  Morrison  v. 
King.  62  111.  30;  Green  v.  Green,  34 
111.  320. 

39.  Chester  &  Darby  T.  R.  Co.  v. 
Chester,  Darby  &  P.  R.  Co.,  217  Pa. 
St.   272,   66  Atl.  658. 

40.  House  v.  Clemens,  24  Abb.  N. 
C.  381. 

41.  Pullman's  Car  Co.  v.  Missouri, 
etc.,  R.  Co.,  55  Fed.  138;  Philadel- 
phia Ball  Club  v.  Hallman,  8  Pa.  Co. 
Ct.  57;  Marble  Company  v.  Ripley, 
10  Wall.  339,  19  L.  Ed.  955;  Philips 
v.  Mining  Company,  7  Phila.  619;  Oil 
Creek  R.  Co.  v.  Atlantic,  etc.,  R.  Co., 
57  Pa.  St.  65;  Backus'  Appeal,  58  Pa. 
St.  186;  Meason  v.  Kaine.  63  Pa.  St. 
335;  Patton  v.  Develin,  2  Phila,  103; 
Dornan's  Estate,  2  W.  N.  C.  522. 

42.  Hammer  v.  McEldowney.  46 
Pa.  St.  334;  Jones  v.  Pennell,  1 
Phila.    539;      Fussell    v.     Rhodes,    2 


Phila.  165.    Two  brothers  assigned  to 
one   C.    a   one-third    interest   in    two 
patents,  one  for  an  improvement  in 
cigarettes   and   one    for   an   improve- 
ment in  cigarette  machines,  and  "  any 
improvements,    renewals,     or    reissue 
of  said  cigarettes,  cigarette  machines, 
or  "    patents,  "  meaning  hereby  to  in- 
vest in  "  C.  "  an  undivided  one-third 
of    said    patents,    extension,    or    im- 
provements    thereof."       By     another 
agreement    an    undivided    one-fourth 
interest  was   conveyed  to  A.  by  the 
brothers  and   C.   in  the  patents  and 
stock  owned  by  them  under  the  firm 
name  of  A.  Bros.  &  Co.,  "  as  well  as 
new    patents,    machines,    etc.,    which 
may  be"  used   in  the  business;   the 
intent  being  to  give  A.  a  one-fourth 
interest  in  all  "  the  patents  and  im- 
provements on  the  same  which  may 
hereafter  be  made,  machines,  stock." 
etc.,   of  A.   Bros.   &  Co.     This   firm, 
and  all  the  above  parties,  transferred 
to   plaintiff   all   the  property  of  the 
firm,     "  together     with     all     patents 
owned  by  any  or  either  of  said  firm 


656 


Relating  to  Contracts.  §  436 

contracts  which  relate  to  the  same  subject  matter  and  constitute 
but  a  single  transaction  may  be  construed  together  in  such  a  way 
as  to  carry  into  effect  the  intention  of  the  parties,  and  be  enforced 
by  injunction.43 

§  436.  Contracts  conferring  exclusive  rights. — Where  parties 
enter  into  a  contract  by  which  exclusive  rights  and  privileges  are 
granted  a  court  of  equity  will  entertain  jurisdiction  of  a  proceed- 
ing to  enjoin  a  breach  thereof.44  So  where  the  supervisors  of  a 
city  made  a  contract  with  an  individual  for  the  period  of  twenty 
years  for  the  removal  of  all  dead  animals  not  slain  for  human  food, 
it  was  decided  that  an  injunction  against  the  delivery  of  the  car- 
casses of  any  such  animals  to  any  other  person  except  the  plaintiff 
or  his  assigns  would  be  granted.45  And  where  a  hotel  proprietor 
has  granted  one  telegraph  company  the  exclusive  privilege  of 
establishing  and  operating  an  office  upon  his  premises,  equity  will 
interfere  by  injunction  to  prevent  a  breach  of  the  contract  in  the 
form  of  an  extension  of  the  same  facilities  to  another  and  a  rival 
company;  the  remedy  at  law  of  the  party  having  the  first  and 
unquestioned  right  being  inadequate.46     But  in  a  recent  case  in 

for   improvements    in  cigarettes    and  Bros.   Co.  v.  Allison}  7  N.  Y.  Supp. 

cigarette   machines."      By    a     fourth  268. 

agreement  the  brothers  and  C.  trans-  43.  Joy  v.  St.  Louis,  138  U.  S.  1, 

ferred  to  plaintiff  the  "respective  in-  38,  11  S.  Ct.  243,  34  L.  Ed.  843. 

terests  which  we  have  heretofore  en-  44.  Western   Union   Teleg.   Co.   v. 

joyed  as  members  of  said  firm"   in  Rogers,  42  N.  J.  Eq.  311.  11  Atl.  13; 

two   patents   for  cigarettes   and   ma-  Petrolio  Mfg.  Co  .v.  Jenkins,  29  App. 

chines,  "this  transfer  to  include  any  Div.    (N.   Y.)    403,   51   N.   Y.    Supp. 

improvements,  renewals,  or  reissues"  1028;  Lowenstein  v.  Fuldner,  2  Misc. 

of   the    patents.      Held,     that   these  R.   (N.  Y.)   176,  21  N.  X.  Supp.  615; 

agreements  did  not  so  clearly  trans-  Bald   Eagle   Valley    Railroad   Co.   v. 

fer  to  plaintiff  or  assure   to   it  the  Pennsylvania  R.  R.  Co.,  171  Pa.  St. 

right    to    any    interest    in    any    in-  284,    33    Atl.   239,   50   Am.    St.    Rep. 

vention  of  one  of  the  brothers  not  al-  807,  29  L.  R.  A.  423. 

ready  patented,  or  which   should  be  45.  Alpers   v.    City    &   County    of 

patented  as  improvements  on  the  for-  San  Francisco,  32  Fed.  503. 

mer    patent,    as    to    justify    a    tern,-  46.  Western    Union    Tel.     Co.    v. 

porary  injunction  for  violation  of  the  Rogers,  42  N.  J.  Eq.  311,  11  Atl.  13. 

contract  by  using  any  improved  ma-  In  this  case  it  appeared  that  the 

chine  of  defendant's  invention  pend-  complainants  were  given  the  exclus- 

ing  the  trial  of  such  issue.     Allison  ive  right  to  have  and  operate  a  tele- 

657 
42 


§§  437,  437a  Relating  to  Contracts. 

New  York  it  is  decided  that  the  breach  of  a  contract  giving  one 
the  exclusive  privilege  of  the  public  stenographer's  office  in  a  hotel 
will  not  be  enjoined  where  the  complainant  has  an  adequate  remedy 
at  law  for  damages  and  the  defendant  is  financially  responsible.47 
Again,  where  a  person  has  been  given  the  right  by  the  lessees  of 
a  theater  for  a  certain  length  of  time  to  use  the  curtain  for  adver- 
tisiuo-  purposes,  and  in  reliance  upon  such  contract  has  entered 
into  contracts  for  advertising  and  has  prepared  his  curtain,  the 
lessees  will  be  enjoined  from  depriving  him  of  the  right  to  use 
such  curtain  in  accordance  with  the  contract  or  from  using  another 
curtain.48  And  an  exclusive  right  to  print  and  sell  copies  of  a  work 
may  be  protected  by  injunction.49 

§  437.  Same  subject. — A  court  of  equity  will  interfere  by  in- 
junction at  the  suit  of  a  lessee  who  claims  an  exclusive  contract 
right  to  carry  on  a  particular  business  on  the  leased  premises,  to 
prevent  another  lessee,  having  notice  of  that  right,  from  violating 
it,  the  jurisdiction  in  such  a  case  being  analogous  to  the  remedy 
by  specific  performance,  and  founded  also  on  the  necessity  of  pre- 
venting a  constantly  recurring  grievance,  for  which  there  can  be 
no  adequate  compensation  in  damages.50 

§  437a.  Same  subject;  gas  contracts  with  municipality. — A 
city  having  under  authority  made  a  contract  with  a  gas  company  to 
furnish  a  city  gas  light  for  a  term  of  years,  with  an  exclusive  right 
to  the  company  to  use  the  streets  for  that  purpose,  may  be  enjoined 

graph  office  in  a  hotel  for  the  season  47.  Hess  v.  Roberts    (N.  Y.  App. 

and  for  each  succeeding  season  unless  Div.,  1908),  108  N.  Y.  Supp.  894. 

either  party  to  the  contract  should  48.  Beer  v.    Canary,  2   App.   Div. 

give  a  written  notice  of  an  intention  (N.  Y.)   518,  38  N.  Y.  Supp.  23. 

to   terminate    the    contract    at    least  49.  Standard    Amer.    Pub.    Co.    v. 

ninety  days  prior  to  the  beginning  of  Methodist    Book     Concern,     33    App. 

a  season.     It  was   decided  that  the  Div.   (N.  Y.)  409,  54  N.  Y.  Supp.  55. 

proprietor  of  the  hotel  would  be  en-  50.  Clay  v.  Powell,  85  Ala.  538,  5 

joined  from  permitting  another  tele-  So.    330;    Parkman     v.     Aicardi,    34 

graph  company  to  maintain  a  com-  Ala.  393;    Maddox  v.   White,  4  Md. 

peting  office  in  such  hotel,  where  the  72;  Manhattan,  etc.,  Co.  v.  New  Jer- 

specified  notice  had   not  been  given.  sey   Stock  Yard,  23  N.  J.  Eq.    161; 

Frank  v.  Brunneman,  8  W.  Va.  462. 

658 


Relating  to  Contracts. 


§  437b 


from  conferring  the  right  to  use  the  streets  for  the  same  purpose 
upon  another  gas  company.51  But  in  another  case  it  is  decided  that 
the  fact  that  a  city  has  entered  into  a  contract  with  a  gas  company, 
by  which  the  latter  is  to  furnish  gas  for  lighting  the  city  for  a 
period  of  years,  is  no  ground  for  an  injunction  to  restrain  the  city 
from  contracting  with  another  company  for  electric  lights  for  light- 
ing streets  and  public  places,  when  the  interests  of  the  city  seem 
to  require  such  a  course ;  and,  if  the  gas  company  is  injured  by  a 
refusal  on  the  part  of  the  city  to  have  its  streets  lighted  with  gas, 
its  remedy  is  by  an  action  for  damages.52  A  natural  gas  company 
which  has  agreed  with  a  borough  to  furnish  gas  to  a  schoolhouse 
and  church  in  consideration  of  the  right  of  way  granted  to  it,  will 
be  restrained  by  injunction,  at  the  suit  of  the  district,  from  after- 
wards shutting  off  the  gas  supply  at  such  schoolhouse  and  church, 
on  the  ground  of  irreparable  injury.53 

§  437b.  Gas  contracts  generally ;   electricity. — An  injunction 
will  lie  to  restrain  a  gas  company  from  discontinuing  its  supply  of 


51.  Newport  City  v.  Newport 
Light  Co.,  84  Ky.  166.  See,  also, 
Jersey  City  Gas  Co.  v.  Dwight,  29  N. 
J.  Eq.  242.  As  to  the  right  of  a  city 
acting  under  legislative  authority  to 
grant  such  a  franchise  or  privilege  to 
a  company,  see  New  Orleans  Gas  Co. 
v.  Louisiana  Light  Co,  115  U.  S. 
659,  6  S.  Ct.  252,  29  L.  Ed.  516; 
Louisville  Gas  Co.  v.  Citizens'  Gas 
Co.,  115  U.  S.  683,  6  S.  Ct.  265,  29 
L.  Ed.  510;  New  Orleans  Water 
Works  v.  Rivers,  115  U.  S.  674,  6  S. 
Ct.  273,  29  L.  Ed.  525. 

52.  City  of  Newport  v.  Newport 
Light  Co.,  14  Ky.  Law  Rep.  845,  21 
S.  W.  645. 

53.  Sewickley  Borough  School 
Dist.  v.  Ohio  Valley  Gas  Co.,  154  Pa. 
St.  539,  25  Alt.  868. 

In  this  case  it  appeared  that  the 
defendant,  a  natural  gas  company,  in 


consideration  of  privileges  extended 
to  it  by  a  borough,  agreed  to  furnish 
gas  free  of  cost  to  the  public  build- 
ings and  churches  of  the  borough, 
with  the  proviso,  however,  that  if 
similar  privileges  should  be  granted 
to  another  company,  the  burden 
should  be  decreased  pro  rata  accord- 
ing to  the  number  of  franchises 
granted.  Subsequently  similar  priv- 
ileges were  granted  to  another  com- 
pany, and  defendant  agreed  to  fur- 
nish the  schoolhouse  and  one  church 
with  gas,  if  the  second  company 
would  furnish  the  other  public  build- 
ings and  churches.  On  a  bill  in 
equity  to  enjoin  the  defendant  from 
cutting  ofx  the  supply  of  gas  from 
the  schoolhouse  it  was  decided  that 
the  contract  was  valid  and  would  be 
enforced  in  equity. 


659 


i§  438  Relating  to  Contracts. 

gas  in  accordance  with  a  contract  between  the  parties.54  And  in  a 
case  in  California  it  was  decided,  in  a  proceeding  to  enjoin  the  dis- 
continuance of  a  gas  supply  in  accordance  with  the  terms  of  a  con- 
tract, that  the  fact  that  the  proceeding  was  not  an  action  for  specific 
performance  in  its  strict  sense,  did  not  prevent  the  granting  of  the 
injunction,  it  being  sufficient  that  there  was  no  complete  and  ade- 
quate remedy  at  law.55  So  where  a  gas  company  agreed  to  supply 
free  of  charge,  a  certain  amount  of  gas  to  the  plaintiff  and  the 
company  subsequently  threatened  to  disconnect  certain  pipes  so  as 
to  cut  off  the  gas  supply,  it  was  decided  that  an  injunction  should 
be  granted  restraining  the  doing  of  such  acts,  and  that  the  plaintiff 
was  entitled  to  this  injunction  notwithstanding  the  financial  re- 
sponsibility of  the  defendant  for  the  payment  of  any  damages 
sustained  by  the  plaintiff.56  And  on  the  contract  of  a  natural  gas 
company  to  furnish  the  owner  of  glass  works  with  gas  for  fuel  so 
long  as  natural  gas  should  continue  to  be  produced  from  the  terri- 
tory owned  by  the  company,  and  on  a  bill  showing  that  plaintiffs' 
glass  works  had  been  constructed,  in  reliance  on  the  contract,  for 
the  use  of  natural  gas  as  only  fuel,  and  that  the  company  had  shut 
off  the  supply,  endangering  loss  incapable  of  accurate  adjustment, 
it  was  held  that  plaintiff  was  entitled  to  a  mandatory  injunction 
to  the  extent  of  restoring  the  status  quo.51  Again,  where  one  enters 
into  a  contract  with  a  public  service  corporation  for  a  supply  of 
electricity,  agreeing  to  use  no  other  current  supplied  by  any  other 
company,  it  has  been  decided  that  there  is  no  adequate  remedy  at 
law  for  a  breach  by  the  consumer  of  his  contract  in  using  a  current 
furnished  by  another  company.58 

§  438.  Coal  mine  contracts. — Where  a  deed  of  bargain  and 
sale  with  words  of  inheritance  granted  certain  lots,  all  gas  from 
certain  wells,  and  the  perpetual  right  to  mine  and  carry  away  coal 

54.  Gallagher    v.    Equitable    Gas  56.  Graves  v.  Key  City  Gas  Co., 
Light  Co.,  141  Cal.  699,  75  Pac.  329;  83  Iowa,  714,  50  N.  W.  283. 
Xenia  Real  Estate  Co.  v.  Macy,  147  57.  Whiteman    v.     Fuel   Gas    Co., 
Ind.  568,  47  N.  E.  147.  139  Pa.  St.  492,  20  Atl.  1062. 

55.  Gallagher  v.  Equitable  Gas  58.  Beck  v.  Indianapolis  Light  & 
Light  Co.,  141  Cal.  699,  47  Pac.  147.  P.   Co.    (Ind.  App.   1905),  76  N.  E. 

312. 

660 


Relating  to  Contracts. 


§438 


from  all  the  veins  under  certain  land,  the  grantee  to  pay  a  royalty 
on  all  coal  mined,  there  being,  however,  no  condition  or  covenant 
requiring  him  to  mine,  it  was  held  that  an  exclusive  right  to  mine 
and  carry  away  coal  was  not  granted  and  therefore  that  the  grantee 
was  not  entitled  to  an  injunction  to  prevent  the  grantor's  mining 
the  said  coal  veins.59 


59.  Jennings  v.  Beale,  158  Pa.  St. 
283,  27  Atl.  948,  per  Curiam :  "  The 
condition  of  this  grant  is  inconsist- 
ent with  the  intent  to  convey  the 
coal  absolutely  and  exclude  the 
rights  of  the  grantor.  It  provides  for 
the  payment  of  a  royalty  of  one- 
fourth  of  a  cent  per  bushel  on  all 
coal  mined  by  virtue  of  the  convey- 
ance. There  is  no  time  fixed  for  pay- 
ment, nor  any  covenant  or  condition 
requiring  the  grantees  to  mine.  If 
the  contention  of  the  plaintiffs  is 
right,  they  may  never  mine  any  coal, 
and  the  defendant  might  be  deprived 
of  his  property  without  payment  of 
the  consideration.  The  view  we  have 
taken  of  this  conveyance  is  sustained 
by  the  authorities  in  similar  cases. 
In  Johnstown  Iron  Co.  v.  Cambria 
Iron  Co.,  32  Pa.  St.  241,  the  grant 
was  the  privilege  of  raising  iron  ore 
on  his  field  at  25  cents  per  ton.  .  .  . 
and  to  give  the  privilege  to  none  else. 
The  court  says :  '  It  was  not  a  sale 
of  all  the  ore  in  the  land  for  a  round 
sum,  as  in  the  case  of  Caldwell  v. 
Fulton,  31  Pa.  St.  475,  but  a  privi- 
lege of  raising  iron  ore  at  25  cents  per 
ton.  .  .  .  Such  a  right  was  not 
exclusive  in  the  grantees,  but  was 
to  be  enjoyed  in  common  with  the 
grantor,  his  heirs  and  assigns.'  In 
Clement  v.  Youngman,  40  Pa.  St. 
341,  though  the  grant  was  the  exclu- 
sive right  to  and  privilege  of  search- 
ing for.  digging,  raising,  and  carry- 
ing away  all  the  iron  ore  and  lime- 
stone   from    certain    lands    described, 


the  grantee  '  agreeing  to  pay  to 
grantor,  his  heirs  and  assigns  at  the 
rate  of  20  cents  per  ton  of  clean  ore,' 
it  was  held  not  to  convey  a  corporeal 
hereditament,  and  principally  because 
'  no  equivalent  was  to  be  given  until 
the  ore  should  be  taken,  and  there 
was  no  obligation  even  to  take  it.'  In 
Gloninger  v.  Coal  Co.,  55  Pa.  St.  9, 
the  grant  of  the  free  right  to  dig  coal 
at  the  coal  bed  was  held  to  be  a  mere 
license.  In  Caldwell  v.  Fulton,  31 
Pa.  St.  475,  stress  is  laid  upon  the 
fact  that  the  grantee  had  the  right 
to  take  all  the  coal  and  that  the 
grantor  had  received  all  that  he  was 
entitled  to  receive  if  all  were  taken. 
And  the  court  refers  to  the  distinc- 
tion between  that  case  and  Cheatham 
v.  Williamson,  4  East,  469,  in  which 
the  right  to  take  coal  was  not  a 
thing  for  which  the  consideration 
mentioned  in  the  deed  was  given.  It 
was  to  be  paid  for  when  taken.  Doe 
v.  Wright.  2  Barn.  &  Aid.  719.  In 
Funk  v.  Haldeman,  53  Pa.  St.  229,  a 
grant  to  take  oil  was  held  to  be  ex- 
clusive. This  was  placed  not  so  much 
on  the  use  of  the  words  '  free  and  un- 
interrupted' as  upon  the  fact  that  the 
grantor  had  reserved  the  mineral 
rights  in  some  portions  of  the  land, 
and  in  those  granted  expressly  re- 
served the  right  of  tillage,  which 
brought  the  case  within  the  principle, 
inclusio  unius  exclusio  alterius.  In 
Sanderson  v.  Scranton,  105  Pa.  St. 
469,  there  was  a  lease  of  all  the  coal 
under   a  certain    tract  of   land  with 


661 


§439 


Relating  to  Contracts. 


§  439.  Grants  of  easements. — "Where  easements  or  servitudes 
are  annexed  by  contract  to  private*  estates,  the  due  enjoyment  of 
them  will  be  protected  against  encroachment  by  injunction,  though 
an  action  at  law  could  be  maintained  for  the  recovery  of  damages.60 
This  rule  was  applied  where  two  railroad  companies  agreed  to  per- 
mit the  building  of  tracks  on  the  right  of  way  of  each  other  and  to 
make  all  crossings  needed  by  the  other  company,  and  it.  was  held 
that  equity  would  not  refuse  to  decree  a  specific  performance  be- 
cause such  performance  was  intended  to  extend  through  a  series  of 
years,  or  because  the  contract  was  more  beneficial  to  one  company 
than  the  other,  and  that  the  contract  was  not  wanting  in  mutuality 
since  it  provided  for  an  interchange  of  like  easements.61 


the  right  to  mine  the  coal  and  remove 
the  same.  The  minimum  quantity  to 
be  mined  each  year  was  fixed  and  to 
be  paid  for  whether  mined  or  not. 
See,  also..  Railroad  Co.  v.  Sanderson, 
109  Pa.  St.  583.  In  Fairchild  v. 
Furnace  Co.,  128  Pa.  St.  497,  there 
was  a  grant  of  digging  all  the  ore 
on  the  lands.  The  court  says :  '  Tt 
was  not  only  the  grant  of  the  right 
to  dig  ore,  it  was  a  grant  of  the  right 
to  dig  all  the  ore  on  the  lands  and 
for  a  sum  in  solido.'  In  Hope's  Ap- 
peal, 3  Atl.  23;  Kingsley  v.  Hillside 
Coal  Iron  Co.,  144  Pa.  St.  613,  23 
Atl.  250,  and  Lazarus'  Estate.  145  Pa. 
St.  1,  23  Atl.  372,  agreements  in 
form  of  lease  were  held  to  convey  es- 
tates in  the  coal  referred  to  because 
they  granted  the  right  to  take  all  the 
coal,  and  provided  payment  for  all. 
The  same  suggestions  will  be  found 
in  Stoughton's  Appeal,  88  Pa.  St. 
202;  Bronson  v.  Lane.  91  Pa.  St. 
153:  Scranton  v.  Phillips,  94  Pa.  St. 
15,  and  other  cases.  In  Grove  v. 
Hodges,  55  Pa.  St.  515.  the  distinc- 
tion is  marked.  It  will  be  observed 
that  in  every  case  where  it  was  held 
that  an  exclusive  right  was  conveyed, 
the  deed  in  express  words  granted  all 


the  mineral,  or  provided  payment  for 
all,  and  in  nearly  every  case  both. 
The  deed  in  this  case  does  not  in 
terms  or  by  necessary  implication 
convey  all  the  coal,  nor  exclude  the 
grantor  nor  provide  for  payment. 
The  view  we  have  taken  of  this 
contract  is  conclusive  of  the  plain- 
tiff's right  to  the  relief  prayed  for. 
The  bill  being  founded  not  on  a  right 
in  common  but  on  the  exclusive  light 
to  the  iron  ore,  and  failing  to  es- 
tablish that  right  they  have  no 
equity  to  demand  the  relief  sought. 
Johnstown  Iron  Co.  v.  Cambria  Iron 
Co.,  32  Pa.  St.  24G.  The  bill  must 
therefore    be    dismissed." 

60.  Lide  v.  Hadley,  36  Ala.  627. 
635;  Burden  v.  Stein,  27  Ala.  104; 
Trustees  v.  Cowen.  4  Paige,  510;  Sey- 
mour v.  McDonald,  4  Sandf.  Ch.  502. 

61.  South  &  North  Ala.  R.  Co.  v. 
Highland  Ave.  &  B.  R.  Co.,  98  Ala. 
400,  13  So.  682.  per  Stone,  C.  J.: 
"  In  the  case  of  Lytton  v.  Railway 
Co.,  2  Kay  &  J.  394,  it  was  held  that 
where  a  railway  company  had 
agreed  with  a  land  owner,  through 
whose  estate  the  railway  would  pass, 
to  construct  and  maintain  a  sidin? 
connected   with  their   railway  at  B., 


662 


Relating  to  Contracts. 


§439a 


§  439a.  Contract  to  supply  water. — Where  one  enters  into  a 
contract  to  supply  water  to  another  equity  may  interfere  by  injunc- 
tion to  prevent  a  breach  of  such  contract.62    So  where  land  is  con- 


together  with  all  the  necessary  ap- 
proaches thereto  for  public  use,  for 
the  reception  and  delivery  of  goods, 
1  specific   performance    could    be    de- 
creed of  the  agreement  to  construct 
the    siding    and    approaches    without 
decreeing   the  company   to   maintain 
them  when  made.'     In  Sanderson  v. 
Railway    Co.,    11    Beav.    497,    a   rail- 
way   company   being   about   to   sever 
the  plaintiff's  land  by  their  railroad, 
agreed  to  purchase  the  necessaiy  por- 
tion of  land,  '  subject  to  the  making 
such  roads,  ways,  and  slips  for  cat- 
tle as  might  be  necessary.'  Held,  that, 
although  it  was  very  difficult  to  exe- 
cute   an    agreement    thus    expressed, 
yet   the   plaintiff   was   entitled   to    a 
specific    performance,    and    that    the 
word  '  necessary '  must  receive  a  rea- 
sonable  interpretation.     In  the  great 
case  of  Joy  v.  St.  Louis,  138  U.  S.  1, 
11   Sup.  Ct.  243,   34   L.   Ed.  843,  the 
Wabash,  St.  Louis  &  Pacific  Railway 
Company  had  bound  itself  to  permit 
the  St.  Louis,  Kansas  City  &  Colorado 
Railway  Company  to  use  its  right  of 
way   from   the  north   line   of   Forest 
park,  through  the  park,  to  the  ter- 
minus   of     the     Wabash    Company's 
road,  in  the  city  of  St.  Louis,  for  a 
fair     and    reasonable     compensation. 
The  question  was  whether  the  chan- 
cery court  would  specifically  enforce 
this  contract.     It  was  ruled  that  the 
court  had  power  to  enforce  the  spe- 
cific   performance    of    the    agreement 
by  enjoining  the  appellants  from  pre- 
venting the   Colorado  company  from 
using  the  right  of  way  and  that   a 
remedy  at  law  would  be  wholly  in- 
adequate.     Following  this  case  as  a 
precedent  it  was  said  in  Union  Pac. 


R.    Co.  v.    Chicago,   etc.,   R.   Co.,    51 
Fed.   309,  that  the  specific  perform- 
ance of  a  contract  whereby  one  rail- 
road lets  another  into  the  joint  use 
of   its  bridge  and  terminals  will  not 
be  refused  because  the  acts  to  be  per- 
formed   are    numerous    and    compli- 
cated, and  are   to  extend  through  a 
long  term  of  years.  In  a  note  to  Con- 
ger v.  Railroad  Co.,  120  N.  Y.  29.  23 
N.  E.  983,  in  43  Am.  &  Eng.  R.  Cas. 
G43,  651,  is  this  expression  supported 
by   many   citations:       'Specific    per- 
formance will  be  decreed  to  enforce 
contracts  of  a  permanent  nature  be- 
tween railroad  corporations  for  run- 
nine:    on     and     use     of     each    other's 
tracks,   or  of  the   track   of  one  cor- 
poration   by   the  trains   of   another.' 
See,    also,    Chicago,    etc.,    R.    Co.    v. 
Union  Pac.  R.  Co.,  47  Fed.  15;  Wil- 
son v.  Railway  Co.,  2  DeG.,  J.  &  S. 
475.      The    foregoing    principles    and 
authorities  are  not  at  war  with  Mc- 
Bryde  v.   Sayre,   86  Ala.   458,  5  So. 
971;    Ely  ton    Land    Co.    v.    South    & 
North  Ala.  R.   Co.,  95  Ala.  631,    10 
So.  270.     Nor  does  it  conflict  when 
properly  applied  with  Windham  Cot- 
ton   Mfg.    Co.    v.    Hartford,    etc.,    R. 
Co.,  23  Conn.  373;  Cooper  v.  Pena,  21 
Cal.  403;  Conger  v.  Railroad  Co.,  120 
N.  Y.  29,  23  N.  E.  983;  Ry.  Co.  v. 
Marshall,    136  U.   S.   393,   10   S.   Ct. 
846,  34  L.  Ed.  385.    See.  also,  Water- 
man, Spec.  Perf.,  §  49." 

62.  Hendricks  v.  Hughes,  117  Ala. 
591,  23  So.  637;  Wood  v.  Auburn,  87 
Me.  287,  32  Atl.  906,  29  L.  R.  A. 
376;  Van  Nest  Land  &  I.  Co.  v. 
New  York  &  W.  W.  Co.,  7  App.  Div. 
(N.  Y.)  295,  40  N.  Y.  Supp.  212; 
Traitel  Marble  Co.  v.  Chase,  35  Misc. 


6G3 


§  440  Kelatixg  to  Contracts. 

veyed  by  a  deed  giving  the  grantee  the  right  to  certain  water 
privileges  from  a  spring  on  the  land  of  the  grantor,  the  grantee 
may  maintain  a  bill  in  equity  to  restrain  the  grantor  from  inter- 
fering with  such  use.63  And  where  a  water  company  contracted 
with  a  brewery  to  supply  it  with  water  for  use  in  its  business  it 
was  decided  that  the  company  would  be  restrained  from  shutting 
off  such  supply  when  such  act  would  stop  the  brewing  and  result 
in  the  loss  of  a  considerable  quantity  of  malt  and  also  loss  of 
trade.64  So  where  a  city  in  consideration  of  the  right  to  lay  water 
pipes  -through  a  person's  property  contracted  with  the  owner  to 
give  him  the  free  use  of  two  hydrants  on  such  property  it  was 
decided  that  the  city  would  be  restrained  from  discontinuing  such 
service.65 

§  440.  Enjoining  assignee  of  contract ;  tenant. — Not  only  may 
the  original  parties  to  a  contract  be  enjoined  from  a  breach  of  it, 
but  also  one  who  has  assumed  the  contract  may  be  so  enjoined; 
and  if  a  person  so  conduct  himself  as  to  lead  the  other  party  to 
believe  that  he  has  made  the  contract  his  own  and  his  acts  aire 
explicable  only  upon  that  theory,  he  will  not  be  permitted  to 
repudiate  its  obligations.  Thus  an  injunction  will  lie  to  enjoin  a 
water  company  which  has  bought  out  another  company,  from 
breaking  a  contract  of  that  company  to  supply  water  to  a  brewery, 
when  turning  off  the  water  would  stop  the  brewing,  destroy  a 
large  quantity  of  malt,  and  injure  the  brewers'  trade.66  And  the 
assignee  of  a  contract  may  be  enjoined  from  bringing  actions  there- 
under in  another  State  under  laws  which  are  different  from  those 
in  the  State  where  the  contract  was  entered  into,  and  in  which  it 

R.  (N.  Y.)  233,  71  N.  Y.  Supp.  628;  G5.  Brown   v.   City   of   Frankfort, 

Cleburne  Water,  I.  &  L.  Co.  v.  Cle-  10  Ky.  Law  Rep.  462. 

burne,   13  Tex.  Civ.  App.  141,  35  S.  66.  Horsky  v.  Helena  Consolidated 

W-  733-  Water    Co.,    13    Mont.    229,    33    Pac.  j 

As  between  lessor  and  lessee,  689.     See,  also,  Wiggins  Ferry  Co.  v, 

see  Chapter  XLII  herein.  Ohio,  etc.,  R.  Co.,  142  U.  S.  396.  408, 

63.  Wright  v.  Newton,   130  Mass.  12  S.  Ct.  188,  35  L.  Ed.  1055;   Chi- 
553,  eago,  etc.,  R.  Co.  v.  Chicago,  etc.,  Coal 

64.  Horsky  v.  Helena  Consol.  W.  Co.,  79  111.  121. 
Co.,  13  Mont.  229,  33  Pac.  689. 


664 


Relating  to  Contracts.  §  440a 

was  to  be  performed  and  in  which  both  of  the  parties  to  the  con- 
tract as  well  as  the  assignee  reside.67  And  the  tenant  or  assignee 
of  a  vendee  may  be  enjoined  from  the  breach  of  the  vendee's 
covenant  which  runs  with  the  land.6*5  A  party  who  has  assigned 
his  equitable  right  in  a  contract  not  assignable  at  law  will  also  be 
restrained  from  interfering  to  prevent  the  assignee  from  using  his 
name  in  enforcing  the  contract  in  a  court  of  law.69 

§  440a.  Against  one  not  party  to  a  contract. — A  court  of 
equity  will  in  some  cases  grant  an  injunction  restraining  one  who 
is  not  a  party  to  a  contract  from  interfering  with  one  who  is  a 
party  thereto  for  the  purpose  of  inducing  him  to  break  such  con- 
tract.6^ So  in  Massachusetts  it  is  said  to  be  settled  that  there  is  no 
distinction  between  a  defendant's  enticing  away  a  plaintiff's 
servant  and  defendant's  inducing  a  third  person  to  break  any  other 
contract  between  him  and  the  plaintiff.70  In  this  case  it  was 
decided  that  where  the  plaintiff  proves  that  the  defendant  unlaw- 
fully interferes  or  threatens  to  interfere  with  his  rights  under  a 
contract,  and  further  makes  out  in  proof  that  damages  will  not 
afford  an  adequate  remedy,  equity  will  issue  an  injunction.71  So 
where  under  a  contract  between  a  manufacturer  and  wholesale 
dealers  the  latter  can  only  sell  to  persons  having  a  contract  with 
the  manufacturer  by  which  the  price  is  fixed  at  which  such  per- 
sons may  sell  to  consumers,  it  is  held  that  a  third  party  may  be 
enjoined  from  inducing  a  purchaser  who  had  such  a  contract  as 
to  price  from  violating  his  contract  by  selling  the  goods  to  such 
party.72    And  where  by  a  contract  between  a  publisher  of  a  copy- 

67.  Sandage    v.    Studebaker    Bros.       1907),  80  N.  E.  817. 

Mfg.  Co.,  142  Ind.  48,  41  N.  E.  380,  71.  Beekman   v.    Marsters    (Mass. 

34  L.  R.  A.  363.  1907),    80    N.    E.     817;     Pickett   v. 

68.  Sutton  v.  Head,  86  Ky.  156,  5  Walsh,  192  Mass.  572,  78  N.  E.  753: 
S.  W.  410.  See,  also,  Hall  v.  Solo-  Vegelahn  v.  Guntner.  167  Mass.  92, 
mon,  61  Conn.  476,  23  Atl.  876.  44  N.  E.   1077,  35  L.  R.  A.  722,  57 

69.  Deaver   v.    Eller,    7   Ired.    Eq.  Am.  St.  Rep.  443. 

24,   26.  72.  Wells    &    Richardson     Co.     v. 

69a.  Dr.    Miles'    Medical  Co.    v.       Abraham.    146    Fed.    190.      Compare 

Goldthwaite,  133  Fed.  794.  Waterman  Co.  v.  Waterman.  27  App. 

70.  Beekman   v.   Marsters  (Mass.       Div.  (N.  Y.)  133,  50  N.  Y.  Supp.  131. 

665 


§  441  Relating  to  Contracts. 

righted  publication  and  the  original  purchasers  the  latter  are  not 
to  sell  such  publication  at  less  than  a  stated  figure,  it  has  been 
decided  that  the  original  seller  is  entitled  to  relief  in  equity  where 
unlawful  and  malicious  attempts  are  made  by  a  third  party  to 
induce  a  breach  of  the  contract  by  the  original  purchasers.73  Again, 
where  a  person  has  a  contract  to  act  as  the  agent  of  another 
within  a  certain  territory  and  the  party  with  whom  he  has  the 
contract  is  induced  by  a  third  person  to  break  such  contract  and 
enter  into  a  new  one  by  which  the  latter  is  employed  to  act  as  the 
agent,  it  is  decided  that  a  court  of  equity  will  enjoin  the  latter 
from  so  acting.74  And  an  injunction  will  be  granted  restraining 
a  third  person  from  inducing  one  to  break  a  contract  which  he  has 
with  a  news  agency  by  which  he  is  supplied  with  information  on 
condition  that  he  shall  not  disclose  such  information  to  third 
persons.70 

§  441.  Taxpayers'  actions  to  restrain  or  enforce  contracts. — 

In  Massachusetts  it  is  held  that  a  court  of  equity  has  no  jurisdic- 
tion to  entertain  a  suit  by  individual  taxpayers  to  restrain  a  city 
from  carrying  out  an  invalid  contract.76    But  a  different  rule  exists 

73.  Bobbs-Merrill  Co.  v.  Straus,  contract  for  building  the  bridge  had 
147   Fed.  15,  77  C.  C.  A.  607.  previously   been   entered   into   by   the 

74.  Beekman  v.  Marsters  (Mass.  commissioner  of  highways,  and  that 
1907),  80  N.  E.  817.  the    subsequent    contract   should,    on 

75.  Exchange  Teleg.  Co.  v.  Central  that  account,  be  declared  invalid. 
News  [1897],  2  Ch.  48.  66  L.  J.  Ch.  Held  insufficient  ground  for  an  in- 
N.  S.  672,  76  Law.  T.  Rep.  91.  junction,   the   validity  of   the   action 

76.  Steele  v.  Municipal  Signal  Co.,  of  the  board  of  supervisors,  and  not 
160  Mass.  36,  35  N.  E.  105,  follow-  the  validity  of  the  contracts,  being  in 
ing  Baldwin  v.  Wilbraham,  140  Mass.  question.  Barker  v.  Town  of  Oswe- 
459,  4  N.  E.  829.  gatchie,  16  N.  Y.  Supp.  727. 

In  an  action  by  a  taxpayer  to  Since  Sayles'  Civil  Stat.,  art.  3715, 
enjoin  the  erection  of  a  bridge  charging  the  superintendent  of  public 
by  a  town,  which  it  had  been  au-  instruction  with  the  administration 
thorized  to  build  by  the  county  of  the  school  law.  requires  him  to 
board,  on  the  ground  that  the  whole  hear  all  appeals  from  the  rulings  and 
proceeding  was  a  conspiracy  to  divert  decisions  of  subordinate  school  offi- 
the  public  money  to  the  private  pur-  cers,  and  article  3714  allows  an  ap- 
pose of  draining  certain  swamp  lands.  peal  from  his  decision  to  the  State 
plaintiff  further  urged  that  a  valid  board  of  education,  taxpayers,  unless 

666 


Relating  to  Contracts.  §  442 

in  some  other  States.77    So  in  a  case  in  Indiana  it  is  decided  that 
an  action  by  a  taxpayer  to  prevent  the  threatened  execution  of  an 
illegal  contract  by  school  trustees  for  the  payment  of  money  to  one 
of  such  trustees  will  not  be  defeated  by  the  fact  that  the  execution 
of  the  contract  would  constitute  a  cause  of  action  upon  the  bond  of 
the  trustee.78    But  in  a  case  in  New  Hampshire  it  is  decided  that 
a  taxpayer  cannot  maintain  a  bill  for  an  injunction  against  the 
violation  bv  an  academy  of  a  contract  with  the  school  district, 
in  a  matter  not  affecting  plaintiff's  interest,  for  a  school  district, 
being  a  body  corporate  with  power  to  sue  and  be  sued,  must  exercise 
its  own  remedy  in  its  corporate  capacity.79    And  a  bill  by  taxpayers 
to  restrain  the  payment  of  money  by  a  village  under  a  contract  is 
fatally  defective  in  not  making  the  person  entitled  to  the  payment 
or  his  successor  in  interest  a  party  to  the  bill.80    One  not  a  party 
to  a  contract,  between  another  and  a  town,  but  merely  a  citizen 
of  the  town,  cannot  demand  an  injunction  against  a  breach,  his 
interest  not  being  special.sl 

§  442.  Same  subject. — An  owner  of  land  abutting  on  a  street, 
the  roadbed  of  which  is  being  paved  in  an  imperfect  manner  and 
in  breach  of  his  contract  by  a  contractor  with  the  city,  has  a 
standing  in  equity  to  restrain  the  common  council  from  paying 
for  such  work  in  cases  in  which  he  will  be  assessed  in  part  for  the 
cost,  since  if  he  stands  by  and  sees  the  city  pay  the  contractor  he 
will  have  to  pay  his  assessment.82 

they  have  exhausted  these  remedies  78.  Alexander  v.  Johnson,  144  Ind. 

cannot  maintain  a  suit  to  enjoin  the  82,  41   N.  E.  811. 

payment    of    the    school    fund    to    a  79.  Page  v.  Haverhill  Academy,  63 

teacher  under  a  contract  made  with  N.  H.  216.                                   nr^^ 

him   bv   the   school    trustees,   on   the  80.  Hoppock  v.  Chambers,  96  Mich, 

ground  that  the  teacher  maintained  509.  56  N.  W.  86 

a    sectarian    school,     and    that    the  81.  Bosworth  v.  Norman,  14  R.  I. 

trustees  therefore  had  no  authority  to  521. 

make  the  contract.     Nance  v.  John-  82.  Lodor  v.  McGovern    48  N.  J. 

sou,  84  Tex.  401.   19  S.  W.  559.  Eq.  275,  22   Atl.   199;   State  v    Jer- 

77.  Alexander  v.  Johnson,  144  Ind.  sey  City,  29  N.  J.  Law,  441;   Bond 

82    41   N    E    811;   Deweese  v.  Hut-  v.     Newark.     19     N.     J.     Eq.     370; 

ton,  144  Ind.  114.  43  N.  E.  13.  Schumm   v.    Seymour,    24   N    J.   Eq. 

See  Dillon,  Munic.  Corp.,  4th  ed.,  144;    Liebstien  v.  Newark.  24  N    J. 

§  Q14  Eq.  202.     A  contract  with  the  btate 

0G7 


§443 


Relating  to  Contracts. 


§  443.  Injunctions  in  aid  of  specific  performance. — An  in- 
junction to  restrain  a  breach  of  a  contract  often  operates  to  all 
intents*  and  purposes  as  a  decree  for  its  specific  performance.83 
Where,  under  a  bill  for  specific  performance  of  a  contract  of  sale, 
the  complainant,  after  obtaining  a  temporary  injunction  against  a 
sale  to  other  parties,  withdraws  so  much  of  the  bill  as  seeks 
specific  performance,  with  the  understanding  that  if  the  court  finds 
him  entitled  to  specific  performance,  it  shall  award  damages  in 
lieu  thereof,  it  is1  then  proper  to  dissolve  the  injunction,  since  it 
could  be  granted  only  as  incident  to  the  relief  originally  sought.84 
And  this  rule  that  an  injunction  in  aid  of  specific  performance 
will  be  denied  where  the  facts  alleged  in  the  complaint  do  not 
make  out  a  case  entitling  plaintiff  to  specific  performance,85  is 


board  of  engineers  under  La.  Acts, 
1884,  No.  7,  for  straightening  a  navi- 
gable watercourse  at  the  expense  of 
the  persons  interested,  is  a  private 
enterprise;  and  an  injunction  thereon 
cannot  be  resisted  on  the  pretense 
that  it  is  in  the  exercise  of  the  police 
power  of  the  State,  or  is  sanctioned 
by  the  levee  laws.  Chaffe  v.  Treze- 
vant,  38  La.  Ann.  746. 

83.  Joy  v.  St.  Louis,  138  U.  S. 
1,  46,  11  S.  Ct.  243,  34  L. 
Ed.  843,  per  Blatchford,  J.: 
"  The  prayer  for  an  injunction  to 
restrain  the  Wabash  company  and 
its  receiver  from  refusing  to  permit 
the  Colorado  company  to  use  the 
right  of  way  of  the  Wabash  company 
is  a  prayer  for  all  that  is  necessary 
to  secure  practically  the  specific  per- 
formance of  the  agreement.  Dinham 
v.  Bradford,  L.  R.  5  Ch.  519;  Tillect 
v.  Charing  Cross  Bridge  Co.,  26 
Beav.  419;  Raphael  v.  Thames  Val- 
ley Railway,  L.  R.  2  Eq.  37; 
Tscheider  v.  Biddle,  4  Dillon,  55; 
Biddle  v.  Ramsey,  52  Mo.  153 ;  Arnot 
v.  Alexander,  44  Mo.  27 ;  Hug  v.  Van 
Burkleo,  58  Mo.  202;  Gregory  v. 
Mighell,  18  Ves.  328." 


84.  Wescott  v.  Mulvane,  58  Fed. 
305. 

85.  §  7  ante;  Baldwin  v.  Society, 
etc.,  9  Sim.  393 ;  Peto  v.  Brighton  R. 
Co..  1  Hem.  &  M.  468;  McKibbin  v. 
Brown.   1   McCart.   13. 

The  general  rule  1*  that  an  in- 
junction will  not  be  granted  to  re- 
strain a  breach  of  contract  by  defend- 
ant when  the  complain?  nt's  prom- 
ises are  of  such  a  nature  that  they 
cannot  be  specifically  enforced  unless 
they  have  been  already  performed. 
Fowler  Utilities  Co.  v.  Gray  (Ind. 
1907).  79  N.  E.  897,  citing  22  Cyc. 
850. 

"  It  is  a  general  principle  that 
when,  from  personal  incapacity,  the 
nature  of  the  contract,  or  any  other 
cause,  a  contract  is  incapable  of  be- 
ing enforced  against  one  party,  that 
party  is  equally  incapable  of  en- 
forcing it  specifically  against  the 
other,  though  its  execution  in  the 
latter  way  might  in  itself  be  free 
from  the  difficulty  attending  its  exe- 
cution in  the  former."  Marble  Co. 
v.  Ripley,  10  Wall.  (U.  S.)  339,  359, 
19  L.  Ed.  955. 

In   California   it  is  provided  by 


668 


Relating  to  Contracts.  §  444 

especially  stringent  when  a  mandatory  injunction  is  asked,  as  such 
an  injunction  is  seldom  allowed  before  final  hearing.86  The  gen- 
eral rule  is  not  to  decree  a  specific  performance  of  contracts  which 
by  their  terms  stipulate  for  a  succession  of  acts  whose  perform- 
ance cannot  be  consummated  by  one  transaction,  but  will  be  con- 
tinuous and  require  protracted  supervision.87  Therefore  an 
injunction  will  not  be  granted  to  prevent  the  breach  of  a  contract 
by  which  a  railroad  company  agreed  to  furnish  an  express  com- 
pany, from  time  to  time  requisite  conveniences  and  rooms,  and 
cars  and  extra  trains  and  assistance  of  employees  when  necessary.88 
And  an  injunction  will  not  lie  against  the  breach  of  a  contract  by 
the  Associated  Press  to  give  the  exclusive  right  of  publishing  their 
dispatches,  for  an  indefinite  period,  at  a  certain  place,  to  a  publish- 
ing company,  in  return  for  the  latter' s  services  as  their  correspond- 
ent and  agent,  since  the  contract  could  not  be  specifically  enforced 
against  complainant.89 

§  444.  Same  subject ;  when  injunction  lies. — When  there  is  a 
plain  breach  of  a  clear  contract  a  court  of  equity  will  decree  specific 
performance  and  if  necessary  enjoin  a  breach  if  the  remedy  at  law 
is  not  as  full  and  complete  as  in  equity.90  And  this  is  the  rule  also 
as  to  contracts  affecting  personal  property,  though  not  so  freely 

code   (Civ.  Code,  §  3423)   that  where  89.  Iron  Age  Pub.  Co.  v.  Western 

the  performance  of  a  contract  cannot  Union  Tel.   Co.,   83  Ala.   498,   3   So. 

be    specifically    enforced,    an    injunc-  449. 

tion  will  not  lie  to  prevent  a  breach  90.  Great  Northern  R.  Co.  v.  Man- 
thereof.  Farnurn  v.  Clarke  (Cal.  Chester  R.  Co.,  5  DeG.  &  Sm.  138; 
1906),  84  Pac.   166.  Lide  v.  Hadley,  36  Ala.  627,  635,  per 

86.  Fargo  v.  New  York,  etc.,  R.  Walker,  J.:  "The  fact  that  the 
Co.,  23  N.  Y.  Supp.  360.  remedy    at    law    is    embarrassed    or 

87.  Fry.  Spec.  Perf.,  §  69;  Water-  doubtful  or  difficult  or  less  full  and 
nran,  Spec.  Perf.,  pp.  68.  69;  Blackett  complete  than  the  remedy  in  equity 
v.  Bates,  L.  R.  1  Ch.  App.  117;  Pow-  is  enough  to  justify  resort  to  a  court 
ell  Duffryn  Coal  Co.  v.  Taffvale  R.  of  chancery.  American  Ins.  Co.  v. 
Co.,  L.  R.  9  Ch.  App.  331;  Blanchard  Fisk,  1  Paige,  90;  Boyce  v.  Grundy, 
v.  Railroad  Co.,  31  Mich.  43;  Atlanta,  3  Pet.  210,  7  L.  Ed.  655;  Barnes  v. 
etc.,  R.  Co.  v.  Speer,  32  Ga.  550;  Dan-  Lloyd,  1  How.  (Miss.)  584;  Pearl  v. 
forth  v.  Philadelphia,  etc.,  R.  Co.,  30  Nashville,  10  Yerg.  179." 

N.  J.  Eq.   12.  See  Xenia  Real  Estate  Co.  v.  Macy, 

88.  Fargo   v.   New   York,    etc.,  R.       147  Ind.  568,  47  N.  E.  147. 
Co.,  23  N.  Y.  Supp.  360. 

669 


§  445 


Relating  to  Contracts. 


applied.91  Thus  where  defendant  promised  to  plaintiff  the  ex- 
clusive right  to  operate  a  telegraph  office  in  a  hotel,  it  was  held 
that  an  injunction  should  issue  to  restrain  defendant  from  allowing 
a  rival  telegraph  company  to  operate  an  office  there,  the  remedy  at 
law  being  inadequate.92  And  equity  will  grant  a  prayer  for  a 
discovery,  an  accounting,  an  injunction,  and  the  appointment  of  a 
receiver  where  complainant  alleges  that  defendant,  a  building  and 
loan  association,  by  its  constitution  and  by-laws  promised  that 
when  each  shareholder  had  made  payments  upon  his  shares  of 
stock,  making  such  shares  of  the  value  of  $200  each,  it  would 
declare  the  institution  closed,  and  deliver  to  those  who  had  taken 
loans  their  securities  to  be  canoe  led,  and  pay  to  those  who  had 
simply  invested  their  money  the  full  value  of  their  shares ;  that  he 
had  made  such  payments,  and  the  company  had  declared  the  insti- 
tution closed;  and  that  the  company  has  in  its  possession  assets, 
and  refuses  to  pay  him  after  the  lapse  of  ten  years.93  A  contract 
will  not  be  enforced  by  injunction  or  the  specific  performance  of  it 
aided  by  injunction  after  the  contract  had  been  abandoned  or  nulli- 
fied by  the  parties  to  it.94 

§  445.  Same  subject ;  where  contract  uncertain. — Except  in  a 
clear  case  of  right  and  to  prevent  irreparable,  injury  a  preliminary 
injunction  ought  not  to  be  granted  to  enforce  specific  performance 

91.  Johnson  v.  Brooks,  93  N.  Y.  took  loans  promptly  received  all  the 
337.  benefits   designed    by    its   formation, 

See  Petrolia  Mfg.   Co.  v.  Jenkins.  while  those  who  simply  invested  their 

29  App.  Div.    (N.  Y.)   403,  51  N.  Y.  cash  have  been  obliged  to  wait   ten 

Supp.  1028.  years,  with  the  prospect  of  receiving 

92.  Western  Union  Tel.  Co.  v.  Rog-  at  last  less  than  the  principal  in- 
ers   42  N.  J.  Eq.  311,  11  Atl.  13.  vested.      The    assets    remaining    are 

93.  Amer.  v.  Union  Bldg.  &  Loan  equitable  assets.  They  must  be  dis- 
Assn.,  50  N.  J.  Eq.  170,  24  Atl.  552,  tributed  ratably  among  the  sliare- 
per  Bird,  V.  C. :  "It  would  be  very  holders,  for  which  purpose  they  have 
difficult  for  complainant  to  obtain  re-  held  in  trust  by  the  officers  of  the  as- 
lief  in  a  court  of  law.  It  is  the  duty  sociation.  There  is  no  way  known 
of  this  court  to  enforce  this  contract.  to  our  system  of  jurisprudence  of 
It  would  be  monstrous  injustice  to  making  such  distribution  except 
deny  this  complainant  relief.  The  through  a  court  of  equity." 
managers  of  this  institution  have  so  94.  Petition  of  Argus  Co.,  138  N. 
conducted  its  affairs  that  those  who  Y.  557,  573,  34  N.  E.  388. 

670 


Relating  to  Contracts. 


445 


of  a  contract.  Where  the  rights  of  the  parties  to  a  contract  are  of 
a  doubtful  character  and  there  are  disputes  in  regard  thereto  which 
involve  the  very  terms  and  obligations  of  the  contract  an  injunc- 
tion should  not  be  granted  until  such  rights  are  settled.95  And 
where  the  validity  of  a  contract  is  doubtful,  as  where  it  is  partly 
in  restraint  of  trade,  equity  will  not  enjoin  a  breach  thereof.96 
And  when  a  contract  is  so  uncertain  in  its  terms  as  not  to  be  a 
subject  of  a  decree  for  specific  performance,  an  injunction  in  aid 
of  a  specific  performance  should  not  be  granted.97  Again,  whieire 
in  a  suit  to  enforce  an  oral  agreement  to  convey  land  and  to  enjoin 
any  further  conveyance  of  the  same  land  the  parties  to  the  agree- 
ment directly  contradict  each  other  as  to  its  existence,  and  the  other 


95.  Illinois. — Cleveland  v.  Martin, 
218  111.  73,  57  N.  E.  772;  Olin  v. 
Bale,  98  111.  53,  38  Am.  Rep.  78. 

Michigan. — Caswell  v.  Gibbs,  33 
Mich.  331. 

Missouri. — Chouteau  v.  Union  Ry. 
&  T.  Co.,  22  Mo.  App.  286. 

New  York. — Arena  Athletic  Club  v. 
McPartland,  41  App.  Div.  352,  58  N. 
Y.  Supp.  477;  Heine  v.  Rohner,  29 
App.  Div.  239,  51  N.  Y.  Supp.  427; 
Seventh  Regiment  Veterans  v.  Field 
Officers,  5  N.  Y.  Supp.  391,  aff'd  60 
Hun,  578,  14  N.  Y.  Supp.  811. 

Ohio.— Bryan  v.  Chyne,  22  Wkly. 
Law  Bull.  165. 

Pennsylvania. — Gatzmer  v.  Ger- 
man Rowan  C.  St.  V.  O.  A.,  147  Pa. 
St.  313,  23  Atl.  452;  Appeal  of 
Brown,  62  Pa.  St.  17;  Mammoth  Coal 
Co.'s  Appeal,  54  Pa.  St.  183;  Tren- 
with  v.  Dealy,  12  Phila.  386;  In  re 
Broder's  Estate,  2  Kulp.  107. 

Wisconsin. — Hazelton  v.  Putnam, 
3  Pin.  107,  54  Am.  Dec.  158. 

Where  an  action  has  been 
brought  to  compel  specific  per- 
formance of  an  agreement  to 
convey  leasehold  property,  and  it 
is  disputed  whether  the  agreement 
was  executed  by  an  autnorized  attor- 


ney and  also  whether  there  was  an- 
other action  pending  between  the 
same  parties  on  the  same  cause  of 
action,  an  injunction  to  restrain  a 
referee  appointed  by  a  judgment 
from  conveying  the  leasehold  prop- 
erty, and  to  appoint  a  receiver  of  the 
rents  and  profits  during  the  action, 
will  not  be  granted,  as  the  rights  of 
plaintiff  will  be  fully  protected  by 
filing  a  notice  of  lis  pendens.  Fitzger- 
ald v.  Deshler,  55  N.  Y.  Super.  91. 

96.  Mandeville  v.  Harman,  42  N. 
J.  Eq.  185,  7  Atl.  37. 

97.  South  Yorkshire  R.  Co.  v. 
Great  Northern  R.  Co.,  1  Sm.  &  Gif. 
324,  345,  per  V.  C:  "Before  all 
things  the  court  when  asked  to  enter- 
tain an  application  for  an  injunction 
upon  the  footing  that  a  specific  per- 
formance may  be  decreed,  ought  to 
look  for  certainty  in  the  terms  of 
the  agreement  and  for  something  clear 
and  intelligible  with  which  it  can 
deal;  and  the  court  would  expect  to 
find  in  the  terms  of  the  agreement 
sought  to  be  specifically  performed 
such  terms  as  this  court  could,  by  en- 
forcing its  own  decree,  direct  in  all 
respects  to  be  specifically  performed." 


671 


§446 


Relating  to  Contracts. 


witnesses  merely  swear  to  certain  admissions  as  to  an  agreement 
of  some  kind  without  revealing  its  terms,  the  agreement  and  its 
terms  are  not  proved  with  sufficient  certainty  to  justify  a  decree 
for  specific  performance  and  the  bill  will  be  dismissed  for  want  of 
equity.98  But  the  signing  and  acknowledgment  of  a  contract  by 
the  party  of  the  first  part  and  itst  acceptance  and  recording  by  the 
party  of  the  second  part  make  it  a  binding  contract  between  them 
so  that  an  injunction  may  lie  to  aid  its  specific  performance, 
though  it  be  not  signed  by  the  party  of  the  second  part.98 


§  446.  Exceptions  to  general  rule ;  railroad  contracts. — Equity 
will,  however,  sometimes  restrain  the  violation  of  covenants  by 
injunction,  notwithstanding  their  nature  is  such  that  specific  per- 


98.  Barrett  v.  Geisinger.  148  111. 
98,  35  N.  E.  354,  per  Bailey,  J. :  "  The 
rule  is  well  settled  that  a  contract 
which  is  sought  to  be  specifically  en- 
forced must  be  clear,  certain,  and 
unambiguous  in  its  terms,  and  must 
be  either  admitted  by  the  pleadings, 
or  proved  with  a  reasonable  degree 
of  certainty.  As  was  said  in  Long 
v.  Long,  118  111.  G38:  *  It  is  not 
sufficient,  within  the  rule,  to  show 
that  a  contract  of  some  kind  exists 
between  the  parties  and  that  it  has. 
in  whole  or  in  part,  been  performed 
by  the  complaining  party,  but  all  the 
material  terms  of  the  contract  must 
be  satisfactorily  proved  or  admitted.' 
In  Langston  v.  Bates,  84  111.  524,  in 
discussing  the  question,  it  was  said: 
'  In  order  to  take  a  case  out  of  the 
operation  of  the  statute  of  frauds, 
the  authorities  all  agree  that  a  con- 
tract to  convey  should  be  clear  and 
certain  in  its  terms  and  established 
by  testimony  of  an  undoubted  char- 
acter, which  is  clear,  definite  and  un- 
equivocal.' So,  in  Semmes  v.  Worth- 
ington,  38  Md.  298,  it  was  said  that 
in  such  case,  '  the  proof  must  be  clear 


and  explicit,  leaving  no  room  for  rea- 
sonable doubt;'  and  in  Purcell  v. 
Miner,  4  Wall.  517,  18  L.  Ed. 
435,  it  is  said  that  the  com- 
plainant '  should  be  held  rigidly 
to  full,  satisfactory,  and  indubitable 
proof.'  See,  also,  Wallace  v.  Rap- 
pleye,  103  111.  248;  Worth  v.  Worth, 
84  111.  442.  Applying  this  rule,  we 
are  of  the  opinion  that  the  evidence 
fails  to  establish  the  agreement  al- 
leged in  the  bill  and  its  terms  with 
that  clearness  and  certainty  which  is 
necessary  to  entitle  the  complainant 
to  its  specific  enforcement."  And  a 
contract  by  a  physician  who  is  selling 
his  practice  that  he  will  not  continue 
to  practice  in  the  same  place  will  not, 
on  doubtful  terms,  be  construed  so  a3 
to  prevent  him  doing  the  business  of 
a  druggist.  Greenfield  v.  Gilman,  140 
N.  Y.  168,  35  N.  E.  435. 

99.  Indianapolis  Natural  Gas  Co. 
v.  Kibby,  135  Ind.  357,  35  N.  E.  392. 
And  see  Midland  R.  Co.  v.  Fisher, 
125  Ind.  19.  24  N.  E.  756;  Harlan  v. 
Logansport  Natural  Gas  Co.,  32  N. 
E.  930,  133  Ind.  323. 


672 


Relating  to  Contkacts.  §  447 

formance  would  not  be  decreed.  Thus  the  breach  of  a  contract 
between  two  railroad  companies,  by  which  they  agree  to  establish 
a  dispatch  freight  line,  may  be  enjoined,  though  the  contract  could 
not  be  specifically  enforced.1  And  in  England  where  one  of  two 
railroad  companies  had  agreed  to  work  the  other's  line  and  carry 
over  it  certain  specified  traffic,  it  was  enjoined  from  making  a 
wrongful  diversion  of  such  traffic.2  An  injunction  will  lie  to  re- 
strain the  termination  of  a  contract  for  the  employment  of  plain- 
tiff, under  which  he  is  to  receive  a  commission  on  all  sales  made 
by  him,  and  for  the  lease  of  his  machinery,  at  a  specified  rental, 
as  damages  for  the  breach  could  not  be  estimated  at  law.3  And 
where  it  is  not  made  clear  at  a  trial  whether  plaintiff  can  obtain 
full  damages  at  law  for  the  violation  of  a  covenant  not  to  build 
upon  or  incumber  a  certain  right  of  way,  an  injunction  against 
such  violation  is  discretionary  with  the  trial  court,  and  will  not  be 
disturbed.4 

§  447.  Specific  performance  of  real  contracts ;  discretion. — <■ 
When  a  contract  for  the  sale  of  lands  is  fair  and  just  and  free 
from  legal  objection,  it  is  a  matter  of  course  for  courts  of  equity 
to  specifically  enforce  it ;  but  they  will  not  decree  specific  perform- 
ance in  cases  of  fraud  or  mistake,  or  of  hard  or  conscionable  bar- 
gains, or  when  such  a  decree  would  be  inequitable  under  all  the 

1.  Chicago  &  Alton  R.  Co.  v.  New  labor  the  value  of  the  service  doea 
York,  etc.,  R.  Co.,  24  Fed.  516.  See,  not  depend  on  the  productiveness  of 
also,  Singer  Sewing,  etc.,  Co.  v.  But-  the  business  but  upon  the  time  spent 
ton  Hole  Co.,  1  Holmes,  253;  W.  and  value  of  the  service  or  the  corn- 
Union  Tel.  Co.  v.  Union  Pac.  R.  Co.,  pensation  agreed  to  be  paid.  It  is 
3  Fed.  423.  true   that  as   a  general  rule  an  ac- 

2.  Wolverhampton  R.  Co.  v.  Lon-  tion  for  a  specific  performance  of  a 
don,  etc.,  R.  Co.,  L.  R.  16  Eq.  433.  contract  for  labor  will  not  be  main- 

3.  Bronk  v.  Riley,  2  N.  Y.  Supp.  tained  in  equity;  but  that  is  upon 
266,  per  Mayham,  J.:  "The  case  the  ground  that  the  damage  suffered 
differs  from  an  ordinary  contract  for  by  either  party  can  be  measured  or- 
service  in  this:  that  the  contracting  dinarily  in  an  action  at  law.  But 
parties  in  this  case  have  a  commun-  this  rule  is  not  of  universal  appli- 
ity  of  interest  based  upon  the   pro-  cation." 

ductiveness       of       the       enterprise,  4.  Dexter  v.  Beard,  7  N.  Y.  Supp. 

whereas  in  an  ordinary  contract  for       11. 

673 
43 


§  448  Relating  to  Contbacts. 

circumstances.0  So  where  a  contract  for  the  sal*  of  land  pro- 
vided that  the  timber  therein  should  be  sawed  by  the  vendee  into 
lumber  and  delivered  to  the  vendor  at  a  stipulated  price  it  was 
decided  that  the  vendor  had  such  an  interest  in  the  timber  as 
would  authorize  a  court  of  equity  to  interfere  by  injunction  to 
restrain  the  vendee  from  disposing  of  the  timber  contrary  to  the 
provisions  of  the  contract.6  In  New  York,  under  the  old  chancery 
practice,  if  the  equity  of  a  bill  for  specific  performance  failed,  the 
action  could  not  be  retained  to  award  such  damages  for  a  breach 
of  the  contract  as  could  be  recovered  in  a  court  of  law;7  but  now 
that  the  Code  of  Procedure  has  united  legal  and  equitable  causes 
in  the  same  court,  it  is  competent  for  the  plaintiff  to  set  forth  in 
his  complaint  a  cause  of  action  for  specific  performance,  and  also 
a  cause  of  action  for  damages  for  broach  of  contract,  and  then  if 
it  turns  out  upon  the  trial  that  equitable  relief  cannot  be  granted, 
the  plaintiff  can  yet  recover  any  damages  to  which  he  may  be 
entitled.8 

§  448.  When  mutuality  is  wanting. — An  injunction  will  not 
be  granted  in  aid  of  an  action  for  specific  performance  of  a  con- 
tract which  is  unilateral,  and  therefore  will  not  be  decreed  to  be 
specifically  performed,  as  where  the  defendant  has  a  mere  option 
to  purchase  but  is  under  no  obligation  to  purchase.9    It  has,  how- 

5.  Margraf  v.  Muir,  57  N.  Y.  155;  ployee  from  breaking  his  agreement 
Osgood  v.  Franklin,  2  Johns.  Ch.  1 ;  "  not  to  engage  in  the  business  car- 
Seymour  v.  Delancey,  6  Johns.  Ch.  ried  on  by  plaintiff  for  the  period  of 
222  two   years    after     leaving    plaintiff'* 

6.  Burton  v.  O'Neill  Mfg.  Co.,  126  employment"  was  modified  greatly 
Ga.  805    55  S.  E.  933.  because  of   the   significant   fact  that 

7.  Margraf  v.  Muir,  57  N.  Y.  155,  the  employment  was  "  during  the 
158  pleasure  of  the  plaintiff." 

8.  Barlow  v.  Scott,  24  N.  Y.  40;  In  Wood  v.  Dickey,  90  Va.  160. 
Bradley  v.  Aldrich,  40  N.  Y.  504;  17  S.  E.  818,  Fauntleroy,  J.. 
Pumpelly  v.  Phelps,  40  N.  Y.  59;  *aid:  "A  court  of  equity  in 
Clark  v.  Rochester,  etc.,  R.  Co..  18  Virginia  will  will  not  decree  spe- 
Barb.  350.  cific   execution    of    a    contract    when 

9.  Peacock  v.  Deweese,  73'Ga.  570.       there  is  not  mutuality  in  both  obliga- 
In  Matter  of  Pollard,  55  N.  Y.  St.       tion  and  remedy.    Both  parties  must. 

Rep.    157,    an   injunction   which    had       by  the  agreement  itself,  have  a  right 
been  granted  to  prevent  a  former  em-       to   compel   a  specific   performance   of. 

674 


Relating  to  Contracts. 


'§  44l> 


ever,  been  held  that  when  a  contract  is  originally  binding  on  one 
party  to  it  and  not  on  the  other,  the  latter  may  by  suit  waive  the 
want  of  mutuality  and  enforce  its  specific  performance.10 

§  449.  Contracts  affecting  the  public. — The  general  rule  is  that 
a  court  of  equity  will  not  accept  jurisdiction  of  a  controversy  which 
will  have  to  remain  in  litigation  indefinitely,  and  which  the  court 
cannot  put  an  end  to  by  its  decree.11  But  when  the  subject  matter 
of  a  contract  concerns  the  interests  of  the  public,  the  contract  is  to 
be  liberally  construed  and  enforced  in  favor  of  the  public.12  Thus 
when  the  subject  matter  of  a  contract  is  a  public  means  of  trans- 
portation, such  as  a  railroad,  a  court  of  equity  will  be  disposed,  if 
necessary,  to  specifically  enforce  it  by  injunction,  though  the  mat- 
ter may  have  to  continue  before  the  court  and  receive  its  attention 
for  a  long  time.13 


it,  else  equity  will  not  execute  it. 
jtfoore  v.  Randolph,  G  Leigh,  175, 
185;  Hoover  v.  Calhoun,  10  Gratt. 
112;  Iron  Co.  v.  Gardiner,  79  Va. 
305,  311;  Cheatham  v.  Cheatham,  81 
Va.  395,  403 ;  Ford  v.  Euker,  80  Va.  75, 

9  S.  E.  500;  Railroad  Co.  v.  Dunlop, 
86  Va.  346,  349,  10  S.  E.  239 ;  Edichal 
Bullion  Co.  v.  Columbia  Gold  Min. 
Co.,  87  Va.  641,  645,  13  S.  E.  100; 
Graybill  v.  Brugh,  S9  Va.  895,  17  S. 
E.  558.  In  Duvall  v.  Myers,  2  Md.  Ch. 
401,  it  is  said  by  the  court  that  a 
Tight  to  a  specific  performance  of  a 
contract,  so  far  as  the  mutuality  is 
concerned,  depends  upon  whether  the 
agreement  itself  is  obligatory  upon 
both  parties;  so  that  upon  the  ap- 
plication of  either  against  the  other 
■the  court  would  coerce  a  specific  per- 
formance. Rider  v.  Gray,  69  Am. 
Dec.     135 ;     Marble     Co.     v.    Ripley, 

10  Wall.  359,  19  L.  Ed.  955." 
Where  there  is  a  -want  of  uin- 

t-uality  equity  will  grant  an  injunc- 
tion to  enforce  performance.    General 


Elec.  Co.  v.  Westinghouse  Elec.  &  M. 
Co.,   144  Fed.  458. 

10.  Fallon  v.  Railroad  Co.,  1  Dill. 
121;  Alabama,  etc.,  R.  Co.  v.  South, 
etc.,  Ala.  R.  Co.,  84  Ala.  570,  3  So. 
2S6.  And  sec  Mott  v.  Oppenheimer, 
135  N.  Y.  312,  317,  31  N.  E.  1097. 

11.  Marble  Co.  v.  Ripley,  10  Wall. 
339.   19   L.   Ed.  955. 

12.  Joy  v.  St.  Louis,  138  U.  S.  1, 
38,  11  S.  Ct.  243,  34  L.  Ed.  843; 
Colman  v.  Eastern  Counties  R.  Co., 
10  Bear.  1,  14;  Blakemore  v.  Canal 
Co.,  1  Myl.  &  K.  154,  165;  Parker  v. 
Great  VVest.  R.  Co.,  7  Scott,  N.  R. 
835. 

13.  Joy  v.  St.  Louis,  138  U.  S. 
1,  47,  11  S.  Ct.  243,  34  L.  Ed.  843. 
And  see  Barton  v.  Barbour,  104  U. 
S.  126.  26  L.  Ed.  672;  Milten- 
berger  v.  Logansport  R.  Co.,  106  U. 
S.  286,  311,  1  S.  Ct.  140,  27  L.  Ed. 
117;  Union  Trust  Co.,  v.  Illinois 
Mid.  R.  Co.,  117  U.  S.  434,  6  S.  Ct. 
SOn.  29  L.  Ed.  963. 


675 


§§  450,  451  Relating  to  Contracts. 

§  450.  Enforcing  parol  agreement  to  devise. — Where  plaintiff 
and  defendant  entered  into  a  parol  agreement  by  which  defendant 
agreed  to  devise  to  plaintiff  certain  property,  and  upon  the  per- 
formance of  which  agreement  plaintiff  honestly  and  faithfully 
entered  and  continued  for  several  years  and  afterwards  defendant 
sold  and  conveyed  the  property  to  another,  and  the  plaintiff 
brought  an  action  to  enjoin  such  conveyance,  it  was  held  that  the 
agreement  was  binding  upon  defendant,  and  plaintiff  was  entitled 
to  the  relief  asked.14  Though  such  an  agreement  be  by  parol,  yet 
if  there  is  such  a  part  performance  by  the  promisee  as  will  take 
the  agreement  out  of  the  statute  of  frauds,  a  court  of  equity  will 
decree  a  specific  performance  by  the  promisor,  and  therefore  in  a 
proper  case  an  injunction  will  lie.15  A  right  of  way  created  by 
express  grant  in  a  devise  is  appurtenant  to  the  land  devised,  and 
passes  by  a  conveyance  of  the  land  to  a  purchaser  from  the  devisee, 
without  express  mention  of  the  appurtenances,  and  a  court  of 
equity  has  jurisdiction  at  the  suit  of  a  purchaser  from  the  devisee 
to  enforce  the  specific  performance  against  the  purchaser  of  the 
servient  lands  of  such  a  grant  by  devise,  by  establishing  the  right 
defining  the  track,  and  preventing  by  injunction  the  disturbance  of 
the  way.16 

§451.  Enforcing  implied  contracts  by  injunction;  trade 
secrets. — The  English  rule  of  long  standing  is  that  a  tradesman's 
clerk  is  under  an  implied  contract  not  to  make  public  the  trade 
secrets  which  he  learns  in  the  course  of  his  duty  as  clerk,  and  that 
such  contract  may  be  enforced  by  an  injunction.17  In  1892  this 
rule  was*  applied  to  an  apprentice  to  a  firm  of  engine  makers,  and 

'     14.  Pfluger  v.  Pultz,  43  N.  J.  Eq.  Y.  480;   Stephens  v.  Reynolds,  6  N. 

440,   11    Atl.     123.      See,    also,  Van  Y.  458;  Jones  v.  Martin,  5  Ves.  265n; 

Duyne  v.  Vreeland,  12  N.  J.  Eq.  142,  Podmore  v.  Gunning,  7  Sim.  644. 
where  an  agreement  to  devise  to  an  16.  Lide  v.  Hadley,  36  Ala.  627; 

infant  nephew  was  enforced  in  equity,  and  see  Hills  v.  Miller,  3  Paige,  254; 

the  child  having  lived  with  his  uncle  Trustees  v.  Cowen,  4  Paige,  510. 
pursuant  to  the  agreement  for  more  17.  Louis  v.   Swellie    (C.   A.),   73 

than  25  years.  Law.  T.  Rep.  226;  Tipping  v.  Clark 

15.  Johnson  v.  Hubbell,   10  N.  J.  (1843),  2  Hare,  383,  393,  followed  in 

Eq.  332;  Davison  v.  Davison,  13  N.  Prince  Albert  v.  Strange,    1   Mac.  & 

J.  Eq.  246;  Parsell  v.  Stryker,  41  N.  G.  45.    And,  see,  Tuck  v.  Priester,  19 

676 


Kelatixg  to  Contracts.  §  451 

be  was  enjoined  from  publishing  or  communicating  the  contents 
of  a  table,  compiled  by  him,  of  dimensions  of  various  types  of 
engines  made  by  them,  on  the  ground  that  to  do  so  would  be  a 
breach  of  the  implied  contract  arising  from  the  confidential  re- 
lation which  had  existed  between  employer  and  employee.18  And 
a  photographer  who  had  taken  a  negative  likeness  of  a  lady  in 
order  to  supply  her  with  copies  on  the  usual  terms,  was  enjoined 
from  selling  or  exhibiting  copies,  both  on  the  ground  that  there 
was  an  implied  contract  not  to  use  the  negative  for  such  purposes, 
and  also  on  the  ground  that  such  exhibition  would  be  a  breach  of 
confidence.19  And  in  the  United  States  it  is  decided  that  one  who 
owns  a  secret  process  will  be  protected  against  one  who,  in  violation 
of  his  contract  or  other  relations  to  the  owner,  attempts  to  make 
use  of  such  process  himself  or  to  impart  knowledge  of  the  same  to 
others.20  The  exception  to  the  general  rule  is  that  where  the  con- 
fidence ordinarily  existing  between  principal  and  agent  does  not 
exist,  a  contract  is  not  to  be  implied  and  an  injunction  will  not  be 
granted.21  So  in  a  recent  case  in  Iowa  it  is  decided  that  with  the 
exception  of  valuable  trade  secrets  acquired  while  in  a  given  ser- 
vice, an  employee  may  use  the  skill  and  knowledge  there  gained  in 
the  service  of  a  rival,  though  wrongfully  leaving  the  original  em- 
ployment.22 And  in  this  connection  it  has  been  decided  that  one 
who  purchases  a  secret  process  to  be  used  in  manufacturing  with 

Q.    B.   D.   629;    Murray  v.   Heath.    1  145    Fed.    358;    Harrison   v.    Glucose 

B.    &  Ad.   804;    Morison  v.   Moat,   9  Sugar  Ref.  Co.,  116  Fed.  304,  53  C. 

Hare,  241.  C.  A.  484,  58  L.  R.  A.   915;   Taylor 

Use  of  unpatented  secret  pro-  Iron   &   Steel   Co.   v.   Nichols    (N.   J. 

cess. — A  person  who  has  obtained  a  Ch.  1905),  61  Atl.  946. 
secret   unpatented   process   by   fraud-  21.  Reuter's   Telegram   Co.  v.   By- 

ulent  means  while  in  the  employ  of  ron.  43  L.  J.  Ch.  661,  where  the  for- 

another  may  be  enjoined  from  using  eign    correspondents    of    a    telegram 

the  same.       Eastern    Extracting   Co.  company  in  England  were  not  in  the 

v.  Greater  New  York  Extracting  Co.  position  of  ordinary  agents  and  could 

(N.   Y.  App.  Div.    1908),    110   N.  Y.  not  be  compelled  by  injunction  to  ex- 

Supp.  738.  ercise  the  reticence  which  would  have 

18.  Merryweather  v.  Moore  (1892),  been    required   of   them    if   they   had 
2  Ch.  D.  51S.  been    confidential    agents. 

19.  Pollard  v.  Photographic  Com-  22.  Gossard    Co.     v.     Crosly     132 
pany,  L.  R.  40  Ch.  D.  345.  Iowa.  155,  109  N.  W.  483,  6  L.  R.  A. 

20.  Hartman  v.  Park  &  Sons  Co.,  (N.  S.)    1115. 

077 


§452 


Relating  to  Contracts. 


knowledge  that  the  seller  obtained  it  by  fraudulent  means  will  not 
be  granted  an  injunction  restraining  the  use  of  such  procees  by 
another  who  fraudulently  obtained  it  from  the  complainant.22 


§  452.  Enforcing  contracts  for  personal  service. — It  is  a  gen- 
eral rule  that  a  breach  of  a  contract  to  render  personal  services  to 
another  will  not  be  enjoined  except  where  the  services  are  of  such 
a  special,  unique  or  unusual  character  that  their  loss  cannot  be 
reasonably  or  adequately  compensated  for  in  damages.24  And  the 
mere  fact  that  a  servant,  who  has  broken  his  contract  of  employ- 
ment, is  not  financially  responsible  will  not  support  an  injunction 
restraining  him  from  engaging  in  the  service  of  another.25  And  a 
petition  alleging  in  substance  a  high  degree  of  proficiency  in  the 
sale  of  goods  is  held  not  to  show  such  special  or  extraordinary 
service  as  to  justify  an  injunction  restraining  an  employee  who 
has  broken  a  contract  of  employment,  from  engaging  in  the  service 
of  another.26  Again,  an  employer  who  does  not  offer  to  perform  his 
part  of  a  contract  for  the  services  of  another  will  not  in  any  event 


23.  Vulcan  Detinning  Co.  v.  Amer- 
ican Can  Co.  (N.  J.  1906),  62  Atl. 
881. 

24.  Gossard  Co.  v.  Crosly,  132 
Iowa,  155,  109  N.  W.  483,  6  L.  R.  A. 
(N.  S.)  1115;  Jaceard  Jewelry  Co. 
v.  O'Brien,  70  Mo.  App.  432;  Taylor 
Iron  &  S.  Co.  v.  Nichols  (N.  J. 
1905),  (il  Atl.  946.  See  cases  cited 
in  following  section. 

Employer  will  mot  be  enjoined 
from  discharging  an  employee.  Mil- 
ler v.  Warner,  42  App.  Div.  (N.  Y.) 
208.  59  N.  Y.  Supp.  956. 

An  editor  and  manager  of  a 
newspaper  is  entitled  to  an  injunc- 
tion against  a  denial  of  his  rights 
under  the  contract.  Jones  v.  Will- 
iams. 139  Mo.  1,  39  S.  W.  486,  40  S. 
W.  353,  37  L.  R.  A.  682,  61  Am.  St. 
Rep.  436. 

A  breach  by  a  dentist  of  a  con- 
tract requiring  no  special  skill  other 


than  that  which  could  be  rendered  by 
an  ordinary  dentist  will  not  be  en- 
joined for  the  reason  that  a  substi- 
tute can  be  readily  supplied  and  the 
remedy  at  law  is  adequate.  Osius  v. 
Hinehman  (Mich.  1908),  114  N.  W. 
402. 

Whether  equity  will  grant  an  in- 
junction restraining  the  breach  of  a 
contract  by  an  employee  depends  in 
a  large  measure  upon  whether  a  sub- 
stitute for  the  employee  can  be  read- 
ily obtained  who  will  substantially 
answer  the  purpose  of  the  contract. 
Dockstader  v.  Reed,  121  App.  Div. 
(N.  Y.)  846,  106  N.  Y.  Supp.  795. 

25.  Gossard  Co.  v.  Crosly,  132 
Iowa,  155,  109  N.  W.  483,  6  L.  R.  A. 
(U.  S.)    1115. 

26.  Gossard  Co.  v.  Crosly,  132 
Iowa,  155,  109  N.  W.  483,  6  L.  R. 
A.  (N.  S.)  1115. 


678 


Kelating  to  Conteacts.  §  452a 

be  entitled  to  an  injunction  restraining  the  employee  from  devot- 
ing his  services  to  another.27  Where  a  contract  restrained  an 
employee  from  entering  into  the  employment  of  another  for  a  cer- 
tain length  of  time  and  in  a  certain  locality,  in  an  action  to  restrain 
the  employee  from  violating  such  provision  and  from  continuing 
in  an  employment  in  the  same  line  of  business,  it  was  held  proper 
to  refuse  the  injunction  where  it  was  alleged  in  the  answer  that 
the  defendant  was  induced  to  sign  the  contract  by  false  and  fraud- 
ulent representations  and  without  knowledge  of  its  contents,  it 
being  doubtful  whether  the  plaintiff  was  entitled  to  the  relief 
demanded.28  But  in  an  action  to  enjoin  the  sale  of  a  patent  right, 
plaintiff  set  up  a  contract  with  defendant  to  perfect  a  device  and 
to  assign  to  plaintiff  the  patent  and  such  improvements  on  it  as 
were  made  during  his  employment  by  plaintiff;  on  plaintiff's 
showing  that  a  certain  patent  was  an  improvement  on  the  original 
device,  and  that  it  was  invented  during  defendant's  employment, 
defendant  was  enjoined,  pending  the  action,  from  disposing  of 
the  patent  for  the  improvement,  and  any  models  or  papers  relating 
to  it.29 

§  452a.  Enforcing  contracts  for  personal  service ;  actors. — 
Where  a  person  enters  into  a  definite  contract  to  render  to  another, 
and  to  no  one  else,  personal  services  of  such  a  nature  that  their  loss 
to  the  employer  and  acquisition  by  another  would  cause  injury 
not  to  be  compensated  for  in  damages,  a  breach  of  the  contract  in 
leaving  the  employer  and  contracting  with  a  rival  may  be  re- 
strained by  injunction.30  But  even  where  there  is  an  express 
negative  covenant  it  is  said  that  the  authorities  all  agree  that  an 
injunction  will  not  be  granted  save  in  those  exceptional  cases 
where  the  promised  service  is  of  a  special,  unique,  unusual,  and 
extraordinary  or  intellectual  character  which  gives  it  peculiar 
value  the  loss  of  which  cannot  be  reasonably  or  adequately  com- 

27.  Taylor  Iron  &  S.  Co.  v.  Nichols       283.  23  N.  Y.  Supp.  500. 

(N.  J.  1908),  69  Atl.  186.  30.  Myers  v.  Steel  Mach.  Co.    (N. 

28.  Tolman  v.  Mulcahy.  119  App.  J.  Ch.   1904).  57  Atl.   1080;    Metro- 
Div.  (N.  Y.)  42,  103  N.  Y.  Supp.  930.  politan  Exhibition  Co.  v.  Ward.  9  N. 

29.  Cornwall    v.    Sachs,    69    Hun,  Y.  Supp.  779,  24  Abb.  N.  C.  393. 

679 


§452a 


Relating  to  Contracts. 


pensated  in  damages  in  an  action  at  law.31  This  has  been  the  rule 
in  England  since  1852,  and  is  the  settled  rule  in  this  country  in 
respect  to  actors  and  opera  singers  of  great  reputation.32  And  in  a 
recent  case  in  New  York  it  is  said  in  this  connection  that  because 
of  the  special  nature  of  contracts  for  the  employment  of  actors  or 
singers,  although  the  affirmative  contract  cannot  be  enforced,  courts 


31.  Gossard  Co.  v.  Crosly,  132 
Iowa,  155,  109  N.  W.  483,  6  L.  R.  A. 
(N.  S.)    1115.     Per  Weaver,  J. 

3,2.  Lumley  v.  Wagner,  1  DeG.,  M. 
&  G.  604;  Montague  v.  Flockton,  L. 
R.  16  Eq.  189;  Daly  v.  Smith,  49 
How.  Pr.  150;  Hayes  v.  Willio,  11 
Abb.  Pr.  (N.  S.)  167.  Defendant,  an 
actress  and  singer,  had  made  a  con- 
tract with  plaintiff,  a  theatrical 
manager,  to  appear  in  such  operas  as 
he  should  produce  during  a  certain 
season.  Defendant  was  distinguished 
in  her  profession,  and  a  great  artistic 
acquisition  to  any  theater  producing 
comic  operas.  Plaintiff  had  adver- 
tised defendant,  at  great  expense,  as 
a  member  of  his  company.  During 
such  season  defendant  refused  to 
perform  in  an  opera  produced  by 
plaintiff,  and  she,  at  that  time,  had 
agreed  to  appear  at  a  rival  theater  to 
the  end  of  the  season.  Plaintiff  un- 
successfully protested  against  this. 
It  was  not  possible  for  him  to  replace 
defendant  by  any  other  actress  and 
singer  of  equal  repute;  and  in  con- 
sequence ne  was  likely  to,  and  in  fact 
did,  sustain  irreparable  damage. 
Held,  that  these  facts  were  sufficient, 
prima  facie,  to  entitle  plaintiff  to  an 
injunction  to  restrain  defendant  from 
appearing  at  such  other  theater,  and 
that  as  defendant,  by  her  contract 
with  plaintiff,  agreed  to  appear  in 
seven  performances  in  each  week, 
which  plaintiff  might  give,  and  as  it 
was  not  possible  for  her  to  perform 
elsewhere  without  violating  the  con- 


tract, the  fact  that  it  did  not  con- 
tain a  negative  clause,  binding  her 
not  to  appear  elsewhere,  was  not 
ground  for  refusing  plaintiff  an  in- 
junction. Duff  v.  Russell,  14  N.  Y. 
Supp.  134. 

An  actress  and  danseuse,  having 
an  attractive  specialty,  which  she 
claimed  that  she  alone  could  per- 
form, entered  into  a  contract  with 
plaintiff,  the  owner  of  a  theatre,  giv- 
ing him  the  exclusive  right  to  her 
services  for  a  certain  time,  but  vio- 
lated the  contract  by  appearing  at 
other  theaters  during  her  leisure 
time.  Held,  that  an  injunction  would 
lie  to  prevent  such  violation  of  the 
contract,  since  plaintiff  engaged  her 
as  a  special  feature  to  induce  people 
to  come  to  witness  her  performance 
who  would  not  otherwise  attend  his 
theater,  and  her  appearance  at  other 
theaters  would  result  in  pecuniary  in- 
jury to  him,  which  would  be  incapa- 
ble of  proof.  Hoyt  v.  Fuller  (Super. 
N.  Y.),  19  N.  Y.  Supp.  962. 

In  Butler  v.  Galletti,  21  How.  Pr. 
465,  the  court  refused  to  enjoin  a 
danseuse  from  dancing  elsewhere 
than  at  the  Broadway  Music  Hall, 
because  her  agreement  did  not  ex- 
pressly bind  her  not  to  dance  else- 
where. 

An  injunction  will  not  lie  unless  it 
be  alleged  and  shown  that  plaintiff 
will  be  greatly  injured  by  defendant's 
refusal  to  sing.  Mapelson  v.  La- 
blache,  13  Abb.  N.  C.  147. 


680 


Relating  to  Contracts.  §  452a 

of  equity  have  enforced  negative  covenants,  either  express  or  im- 
plied, where  there  was  no  legal  remedy,  for  a  breach  of  the  contract 
and  where  upon  the  nature  of  the  case,  the  parties  to  the  contract, 
ready  and  willing  to  perform,  have  no  remedy  except  to  prevent 
the  breach  of  the  negative  covenants.33  In  a  case  in  Illinois,  how- 
ever, it  is  said  that  while  the  rule  in  England  may  be  as  we  have 
just  stated  yet  that  the  trend  of  the  American  decisions  is  that  in 
the  absence  of  an  express  stipulation  forbidding  service  elsewhere, 
a  court  of  equity  will  not  interfere.34  And  even  in  applying  the 
rule  that  an  injunction  to  restrain  an  actor  from  playing 
elsewhere  than  for  plaintiff  will  be  denied,  unless  it  ap- 
pears that  irreparable  injury,  or  damages  incapable  of  being  ascer- 
tained in  an  action  at  law,  will  result  to  plaintiff  therefrom  in- 
junctions to  prevent  actors  from  performing  for  other  parties,  in 
violation  of  their  contracts,  are  limited  to  cases  where  the  artistic 
abilities  of  the  defendant  are  extraordinary  and  pre-eminent.30 
Whether  or  not  a  court  of  equity  will  grant  relief  in  an  action  of 
this  character  is  a  question,  the  determination  of  which  rests  in 
the  sound  discretion  of  the  court  and  such  a  contract  can  never  be 
enforced  unless  the  parties  seeking  to  enforce  it  are  specifically 
bound  by  the  contract,  so  that  there  are  enforceable  reciprocal 
obligations  which  are  definite.36  So  where  a  contract  employing 
an  actor,  while  definite  for  a  particular  season,  is  indefinite  as  to 
the  two  remaining  seasons  of  employment,  in  that  there  is  nothing 
from  which  the  period  of  employment  can  be  ascertained,  and  in 
that  the  employer  is  not  absolutely  required  to  furnish  employ- 
ment to  the  actor  longer  than  he  considers  it  to  be  to  his  advantage, 
it  is  decided  that  there  is  a  lack  of  mutuality  and  that  a  court  of 
equity  will  not  grant  a  temporary  injunction  to  restrain  the  actor, 
who  repudiates  the  contract,  from  entering  other  employment.37 
And  in  a  recent  case  in  New  York  it  is  decided  that  although  a 

33.  Lawrence  v.  Dixey,  119  App. 
Div.  (N.  Y.)  295,  104  N.  Y.  Supp. 
516.     Per   Ingraham,  J. 

34.  Rabinovich  v.  Reith,  120  111. 
App.  409. 

35.  Carter  v.  Ferguson,  12  N.  Y. 
Supp.  580. 

681 


36.  Lawrence  v. 

Dixey, 

119  App. 

Div.    (N.  Y.)    295, 

104  N. 

Y.  Supp. 

516. 

37.  Lawrence  v. 

Dixey, 

119  App. 

Div.    (N.  Y.)    295, 

104  N. 

Y.  Supp. 

516. 

§  453  Relating  to  Contracts. 

contract  employing  a  singer  provides  that  his  services  are  "  special, 
unique  and  extraordinary  "  so  that  he  cannot  be  replaced,  and  that 
on  a  breach  of  the  contract  the  employer  will  suffer  irreparable 
injury  which  cannot  be  ascertained  in  an  action  at  law,  and  that 
an  injunction  may  issue  restraining  the  employee  from  rendering 
services  to  other  persons,  the  court  should  not  grant  such  injunction 
pendente  lite  when  the  contract  allows  the  employer  to  discharge 
the  employee  without  recourse  and  the  recitals  as  to  the  services 
being  extraordinary  are  not  true  and  it  is  quite  probable  that 
another  singer  can  be  found  to  fill  the  place.38  In  no  case  can  an 
opera  singer  be  compelled  to  sing  by  injunction. 


ss 


§453.  Same  subject;  baseball  players. — Where  a  person 
enters  into  ai  contract  to  render  services  as  a  baseball  player  for  a 
reasonable  length  of  time,  a  court  of  equity,  although  it  cannot 
compel  him  to  perform  those  services,  will  enjoin  him  from  playing 
for  another  person  during  the  time  covered  by  the  contract,  and  it 
is  immaterial  that  the  contract  does  not  contain  a  promise  not  to 
perform  like  services  for  any  other  person,  as  his  express  promise 
to  render  the  former  service  implies  a  promise  not  to  do  anything 
which  will  prevent  him  from  rendering  it.40     But  an  agreement 

38.  Dookstader  v.  Reed,  121  App.  v.  Pickett,  8  Pa.  Co.  Ct.  232,  per 
Div.  (N.  Y.)  846,  106  N.  Y.  Supp.  Arnold,  J.:  "Every  express  promise 
•95.  to    do    an    act    embraces    within    its 

39.  Mnpleson  v.  DelPuente,  13  scope  an  implied  promise  not  to  do 
Abb.  N.  C.  144;  De  Rivafinoli  v.  Cor-  anything  which  will  prevent  the 
setti,  4  Paige,  2G4.  promisor  from  doing  the  act  he  had 

While    in    such    cases    the    singer,  engaged  to  do.     In  the  leading  care 

actor,  or  musician  has  been  enjoined  of  Lnmley  v.  Wagner.  1   DeG.,  M.  <fe 

from    appearing    during    the    period  G.  (504.  this  was  expressly  ruled.     Tt 

named  at  a  place  and  for  parties  dif-  was  there  said  that  an  engagement  to 

ferent  from  those  specified  in  his  first  perform    for    three     months     at   one 

engagement    it    was    never    supposed  theater,  must  necessarily  exclude  the 

that   the   court   could   by   injunction  right  to  perform  at  the  same  time  at 

compel    the    affirmative    performance  another  theater.     This  was   followed 

of  the  agreement  to  sing,  or  to  act.  or  by  the  case  of  Montague  v.  Flockton, 

to   play.     Arthur  v.  Oakes,  63   Fed.  L.  R.  16  Eq.  189,  in  which  an  actor 

310,   11    C.   C.  A.  209,   25   L.   R.   A.  was    restrained    from    breaking    his 

414.     Per  Harlan,  J.  contract  to  play  for  one  manager  by 

40.  American  Base-Ball  Club,  etc.,  playing  for  another.     There  are  no 

682 


Helatikg  to  Contbacts. 


§433 


whereby  one  agreed  to  play  baseball  for  a  club  for  a  period  of 
time  which,  at  the  option  of  the  club,  might  equal  the  term  of  the 


negative  words  in  the  contract  sued 
upon  in  that  case.  There  is  no  rea- 
son why  ball-players  should  be  treated 
differently  from  other  persons  when 
they  seek  to  evade  their  engagements, 
nor  why  managers  should  be  left  en- 
tirely at  the  mercy  of  their  players. 
Daly  v.  Smith,  49  How.  Pr.  150."  In 
Philadelphia  Ball  Cluo  v.  Hallman, 
8  Pa.  Co.  Ct.  57,  Thayer,  P.  J.,  re- 
viewed the  decisions  as  follows.  "  The 
earlier  cases  upon  this  subject  such 
as  Kemble  v.  Kean,  6  Sim.  333;  San- 
quiricio  v.  Benedetti,  1  Barb.  315; 
Kimberley  v.  Jennings,  6  Sim.  340; 
De  Rivafinoli  v.  Corsetti,  4  Paige, 
264;  Ilamblin  v.  Dinneford,  2  Edw. 
Ch.  529,  and  the  Pennsylvania  case, 
Ford  v.  Jermon,  0  Phil  a.  0,  which  fol- 
lowed them,  would  seem  to  have  been 
ruled  upon  the  theory  that  because 
by  their  nature  such  contracts 
do  not  admit  of  compulsory  specific 
performance,  wliich  might  in  the 
sequel  be  altogether  inellicient  to  ac- 
complish that  result.  The  doubt  ex- 
pressed by  Judge  Story  in  regard  to 
the  force  of  this  reasoning  (2  Eq. 
Jur.  7th  ed.  958,  note  6),  has  been 
fully  confirmed  by  the  more  recent 
cases,  both  in  England  and  this 
country,  and  within  recent  years, 
Kemble  v.  Kean,  and  all  the  cases 
that  followed  it  have  been  overruled 
as  well  by  the  English  tribunals  as 
by  the  courts  of  this  country.  Since 
the  case  of  Lumley  v.  Wagner,  1 
DeG.,  M.  &  G.  604,  in  which  Lord 
Chancellor  St.  Leonards,  one  of  the 
greatest  of  English  equity  lawyers, 
enjoined  a  public  singer  from  singing 
at  the  Italian  opera,  Covent  Garden, 
London,  because  she  was  under  an 
engagement   to    sing    at     the    same 


time  for  another  manager  at  another 
theater,  the  modern  doctrine  has  been 
well  established  that  such  cases,  being 
practically  without  redress  at  law 
are  proper  subjects  for  the  control 
of  chancery,  and  that  the  power  to 
interfere  by  the  writ  of  injunction  in 
such  cases  ought  to  be  exercised  in 
order  to  prevent  a  flagrant  breach  of 
good  faith  for  wliich  the  suffering 
party  would  otherwise  be  wholly 
without  any  adequate  means  of  re- 
dress. .  .  .  The  decision  in  Lum- 
ley v.  Wagner  has  accordingly  been 
generally  followed  both  in  England 
and  in  this  country:  Waterman  on 
Specific  Performance,  §  117;  Monta- 
gue v.  Floekton,  L.  R.  16  Eq.  189; 
Sliff  v.  Cassell,  2  Jur.  N.  S.  348; 
Eeehter  v.  Montgomery,  33  Beav.  22; 
Webster  v.  Dillon,  3  Jur.  N.  S.  432; 
Rolfe  v.  Rolfe,  15  Sim.  88;  Hills  v. 
Croll,  2  Phillips,  60;  Fredericks  v. 
Mayer,  13  How.  Pr.  566,  1  Bosw.  227  ; 
Hayes  v.  Willio,  11  Abb.  Pr.  (N.  S.) 
167;  Daly  v.  Smith,  49  How.  Pr. 
150;  McCaull  v.  Braham,  16  Fed.  37. 
If  an  injunction  will  lie  to  restrain 
a  physician  from  breaking  his  con- 
tract not  to  practice  medicine  within 
a  certain  region,  as  in  McClurg's  Ap- 
peal, 58  Pa.  St.  51;  Palmer  v.  Gra- 
ham, 1  Parsons,  476;  Reece  ▼.  Hen- 
dricks, 1  Leg.  Gaz.  79;  Betts'  Ap- 
peal, 10  W.  N.  C.  431,  and  Paxson's 
Appeal,  106  Pa.  St.  429;  if  a  con- 
fectioner may  be  enjoined  from  carry- 
ing on  his  trade  for  a  certain  period 
within  certain  limits  contrary  to  his 
contract.  Harkison's  Appeal,  78 
Pa.  St.  196;  or  a  manufacturer  from 
carrying  on  his  business  in  a  certain 
county,  Smith's  Appeal,  113  Pa.  St. 
580;  or  a  baker,  as  was  done  in  this 


683 


§454 


Relating  to  Contracts. 


player's  life,  and  which  reserves  to  the  club  the  right  to  discharge 
the  player  on  ten  days'  notice,  without  cause,  is  not  an  agreement 
enforceable  by  an  injunction  against  its  violation  by  the  player. 
It  is  too  unfair,  and  wanting  in  mutuality.41  And  an  agreement 
by  which  a  player  consents  to  be  reserved  by  a  baseball  club  for 
the  next  season  does  not  amount  to  a  contract  for  the  next  season 
and  therefore  cannot  be  enforced  as  such  against  the  player.42 

§  454.  Same  subject;  acrobats. — In  the  application  of  the  rulo 
that  a  contract  for  personal  service  will  not  be  enforced  by  injunc- 
tion unless  the  service  is  one  requiring  special  skill  or  ability  equity 
will  not  enjoin  the  breach  of  a  contract  of  certain  acrobats  to 
appear  exclusively  at  complainant's  theater,  where  it  does  not 
appear  that  the  exhibition  involves  special  merit,  skill,  knowledge, 


court  in  Eckart  v.  Gerlach,  12  Phila. 
It.  530;  or  a  blacksmith,  as  in  Car- 
roll v.  Hicks,  10  Phila.  308;  or  an 
attorney,  as  in  Bunn  v.  Guy,  4  East. 
190;  or  a  milkman,  as  in  Proctor  v. 
Sargent,  2  M.  &  G.  20;  or  a  tailor,  as 
in  Rolfe  v.  Rolfe,  15  Sim.  88;  can 
any  good  reason  be  assigned  why  an 
actor  an  athlete,  a  singer,  or  a  base- 
ball player,  should  be  exempt  from 
the  application  of  the  same  remedy 
in  order  to  prevent  an  injury  which 
will  not  admit  of  compensation  in 
damages  and  for  the  redress  of  which 
no  other  adequate  remedy  exists?  We 
think  not." 

41.  Philadelphia  Ball  Club  v. 
Hallman,  8  Pa.  Co.  Ct.  Rep.  57.  See, 
also,  Harrisburg  Base-Ball  Club  v. 
Athletic  Assn.,  8  Pa.  Co.  Ct.  337. 

42.  A  contract  between  defendant, 
a  base-ball  player,  and  plaintiff,  a 
base-ball  club,  gave  the  latter  the 
right  to  "  reserve  "  him  for  the  next 
season,  on  condition  that  he  shou'd 
not  be  reserved  at  a  salary  less  than 
for  the   current  season  without  his 


consent,  and  that  he  should  be  one 
of  not  more  than  fourteen  reserved. 
The  compact  between  tlie  clubs  form- 
ing the  National  League  and  the 
American  Association  gives  each  club 
the  right  to  reserve  fourteen  players 
then  under  contract,  and  declares 
such  players  ineligible  to  contract 
with  any  other  club.  It  also  pro- 
vides that  no  club  shall  contract  with 
a  player  for  a  longer  period  than  one 
season,  and  that  no  contract  for  ser- 
vices after  the  current  season  shall 
be  made  prior  to  October  20th.  Held, 
that  defendant,  though  so  reserved, 
could  not  be  enjoined  from  engaging 
with  another  club,  as  the  right  to 
reserve  him  when  exercised,  did  not 
amount  to  a  contract  for  th^  next 
season,  but  only  to  an  agreement  to 
negotiate  for  a  contract.  Metropol- 
itan Exhibition  Co.  v.  Ewing.  42  Fed. 
198,  24  Abb.  N.  C.  419.  See,  also, 
Metropolitan  Exhibition  Co.  v.  Ward, 
24  Abb.  N.  C.  393,  419,  note,  where 
the  injunction  was  maintained. 


684 


Relating  to  Contracts.  §  455 

or  ability,  so  that  the  same  services  could  not  be  easily  obtained 
from  others,  nor  be  compensated  in  damages  at  law.43 

§455.  Same   subject;   insurance   agents— In  support  of  the 
general  rule  it  has  been  decided  in  Georgia  that  unless  personal. 
services  are  individual  and  peculiar  because  of  their  special  merit 
or  unique  character,  a  negative  covenant,  even  when  express,  not 
to  render  tbem  to  others  than  the  plaintiff  will  not  be  enforced 
by  injunction  in  order  that  the  plaintiff  may  have  the  incidental 
benefit  of  an  affirmative  covenant  to  serve  him  exclusively  for  a 
specified  time.     Hence,  where  one  assigned  to  a  firm  his  interest 
in  a  certain  contract  of  agency  for  an  insurance  company,  and  in 
the  assignment  covenanted  to  remain  with  the  firm  as  special  agent 
in  a  named  State  for  one  year,  and  to  give  his  entire  time  and 
attention  to  the  business  of  that  company  by  procuring  for  it 
applications  for  insurance,  an  injunction  will  not  be  granted  at 
the  instance  of  the  firm  to  restrain  the  assignor  from  soliciting 
insurance  or  transacting  business  for  a  rival  company,  the  assign- 
ment containing  no  express  covenant  that  he  would  not  do  so, 
and  it  not  appearing  that  he  was  a  specially  skillful,  successful,  or 
expert  insurance  agent  whose  place  could  not  be  readily  supplied 
by  another  equally  competent  to  attend  to  the  business  for  which 
his  services  had  been  angaged."    And  a  life  insurance  agent  after 

43  Cort  v  Lassard,  18  Or.  221,  22  was  an  Ohio  corporation,  doing  busi- 
Pac  1054.  See,  also.  Healy  v.  Allen,  ness  in  that  State,  and  not  shown  to 
■6S  La  Ann.  867.  869.  In  an  action  transact  business  in  New  York,  while 
to  restrain  defendant  from  working  the  company  named  was  a  New  York 
for  a  certar*  firm,  or  for  any  other  firm.  Held,  that  an  ^junction 
person  or  corporation,  as  a  litho-  should  be  denied.  Strobridge  Litho- 
graphic designer  or  lithographic  graphing  Co.  v.  Crane,  12  W.  Y. 
sketch  artist,  in  violation  of  a  con-  Supp.  898. 

tract  of  employment  by  plaintiff,  it  44.  Burney    v.    Ryle    91   Ga.   701, 

appeared  thac  much  of  the  work  for  17     S.    E.    986,    per    Lumpkin,    £ 

which   he  was  employed  by  plaintiff  "  It     does     not     appear     from     the 

was     purely     mechanical,     and    that  allegations      of      the      petition      or 

there  was  nothing  uncommon  in  his  from     the     evidence     that     Burney, 

qualifications.     There   was   no   proof  as   an  insurance  agent    was  m   any 

that     his    place    could    not   be     ade-  way    remarkable     or    that    he    had 

quately  supplied,   and  none  of  dam-  shown  himself  to  be  such  a  specially 

age   or   actual   injury,   and   plaintiff  skillful,  successful,  or  expert  person 

685 


§455 


Relating  to  Contiiacts. 


his  contract  of  employment  baa  terminated,  will  not  be  enjoined 
from  persuading,  by  proper  and  lawful  moans,  policy  holders  iu 
the  company  by  which  he  was  employed  to  transfer  their  insurance 


in  this  business  that  it  would  be  dif- 
ficult or  impracticable  to  supply  his 
place  by  another  agent  equally  com- 
petent to  render  such  services  as  his 
contract  required  of  him.  For  this 
reason  the  injunction,  in  our  opinion, 
ahould  have  been  denied.  No  doubt 
there  are  cases  in  which  a  court  of 
equity  will  enjoin  the  breach  of  a 
contract,  and  compel  one  to  abstain 
from  performing  personal  services 
for  other  persons  which  he  was 
bound  to  render  exclusively  to  the 
plaintiff.  '  But  the  services  to  be  per- 
formed must  be  individual  and  pe- 
culiar because  of  their  special  merit 
or  unique  character,  for  otherwise 
the  remedy  at  law  would  be  adequate. 
But  where  the  services  involve  the  ex- 
ercise of  powers  of  mind,  as  of  writ- 
ers or  performers,  which  are  pe- 
culiarly and  largely  intellectual,  they 
may  form  the  class  in  which  the  court 
would  interfere  upon  the  ground  that 
they  are  individual  and  peculiar. 
Damages  for  a  breach  of  such  con- 
tracts are  not  only  difficult  to  ascer- 
tain, but  cannot,  with  any  certainty, 
be  estimated;  nor  could  the  plaintiff 
procure,  by  means  of  any  damages, 
the  same  services  in  the  labor  market 
as  in  case  of  an  ordinary  contract  of 
employment  between  an  artisan,  a 
laborer,  or  a  clerk  and  their  em- 
ployer.' 2  Beach,  Mod.  Eq.  Jur.,  § 
772.  The  same  doctrine  is  laid  down 
in  3  Pom.  Eq.  Jur.,  §  1343.  There  is 
nothing  in  the  record  before  us  to 
authorize  the  conclusion  that  Burney 
had  extraordinary,  or  even  unusual, 
qualifications  for  the  business  which 
he  undertook  to  transact,  and  there- 
fore, under  the  rule  laid  down  by  the 


eminent  text  writers  from  whom  the 
above  quotations  are  made,  the  pre** 
ent  case  is  not  a  proper  one  for  in 
junction.  There  has  been  consider- 
able discussion  of  the  question  as  to 
■whether  or  not  an  injunction  would 
be  granted  in  any  case  of  this  kind 
unless  the  stipulations  not  to  render 
services  to  others  were  in  form  ex- 
pressly negative.  In  the  case  at  bar 
there  was  in  the  contract  no  express 
negative  covenant  by  Burney  not  to 
render  services  to  others  than  the 
plaintiffs.  In  Chemical  Co.  v.  Hard- 
man  (1891),  2  Ch.  Div.  416,  a  recent 
and  thoroughly  well-considered  case, 
it  was  held  that,  in  the  absence  of 
any  negative  stipulation  in  that  be- 
half, the  plaintiffs  were  not  entitled 
to  an  injunction  to  restrain  the 
manager  of  certain  chemical  works 
(who  had  agreed  to  give  to  their  busi- 
ness, during  a  specified  term,  the 
whole  of  his  time)  from  giving,  dur- 
ing the  term,  a  part  of  his  time  to 
a  rival  company.  To  those  who  may 
wish  to  further  investigate  this  ques- 
tion, the  opinion  of  Kekewich,  J., 
from  whoso  judgment  an  appeal  was 
taken,  and  whose  decision  was  re- 
versed, and  also  the  opinions  of  Lind- 
ley,  L.  J.,  and  Kay,  L.  J.,  will  be 
found  decidedly  interesting.  And  in 
the  same  connection  it  will  be  profit- 
able to  examine  Kerr,  Inj.,  445  et 
seq.;  Singer,  etc.,.  Co.  v.  Union,  etc., 
Co.,  1  Holmes,  253,  and  McCaull  v. 
Braham,  16  Fed.  37.  The  elaborate 
and  well-prepared  note  of  Mr.  Abbott 
appended  to  the  case  last  cited  is  a 
valuable  contribution  to  the  law  per- 
taining to  this  subject." 


6S6 


Relating  to  Contracts.  §  456 

to  another  company  where  no  confidence  or  trust  reposed  in  him 
is  violated  by  such  conduct  and  he  is  not  prohibited  from  so  doing 
by  his  former  contract.45 

§456.  Same    subject;    author    and    dramatist.— Where    the 
author  of  a  book  enters  into  a  contract  with  a  playwright  to  make 
a  dramatization  of  it,  which  is  to  be  produced  for  their  joint 
benefit,  the  rights  of  the  playwright  under  the  agreement  may  be 
protected  by  an  injunction  restraining  the  author  and   another 
adapter  and  a  manager  from  producing  a  theatrical  performance 
of  another  adaptation  of  the  book,  made  by  the  other  adapter;  and 
the  fact  that  the  contract  does  not  provide  for  all  the  details,  nor 
fix  a  specific  time  for  performance,  does  not  render  it  so  indefinite 
and  uncertain  as  to  prevent  its  enforcement  in  equity.     In  such 
a  ca«e  the  plaintiff's  equity,  which  entitles  him  to  injunctive  relief, 
is  that  there  is  no  adequate  remedy  at  law,  as  it  would  be  impos- 
sible to  ascertain  what  sum  he  should  have  for  a  breach  of  contract 
by  defendant,  there  being  no  basis  for  estimating  what  profits 
would  accrue  from  the  performance  of  the  plaintiff's  dramatiza- 
tion.46    And  one  who  undertakes  to  produce  a  play  written  by 
another  under  an  agreement  providing  that  no  changes  or  altera- 

i 

45  Stein  v.  National  Life  Assn.,  sale  of  his  patent  medicine,  at  forty 
105  Ga.  821,  32  S.  E.  615,  46  L.  R.  per  cent,  discount,  was  enjoined 
A    150  from  selling  to  any  others.    In  Glass- 

46  House  v.  Clemens,  24  Abb.  N.  ington  v.  Thwaites,  1  Sim.  &  Stu. 
C  381,  9  N.  Y.  Supp.  484.  See,  also,  124,  plaintiff,  who  was  a  partner 
Singer  Sewing  Machine  Co.  v.  Union  with  defendants  in  the  publication  of 
Button  Hole  Co..  1  Holmes.  253.  In  the  Morning  Herald  sued  to  enjoin 
DeMattos  v.  Gibson,  4  DeGex  &  J.  the  use  by  defendants  for  The  Eng- 
276,  the  use  of  a  ship  contrary  to  the  flish  Chronicle  in  which  they  alone 
charter  agreement  was  enjoined;  in  were  interested,  of  the  effects  of  the 
Hooper  v  Brodrick.  11  Simons,  47,  other  co-partnership,  and  the  court 
thouU  the  court  could  not  compel  said:  "The  principle  of  equity 
defendant  to  keep  an  inn  on  certain  ,would  not  permit  that  parties  bound 
demised  premises,  as  he  had  agreed  to  each  other  by  express  or  implied 
to  do  it  enjoined  him  from  doing  .contract  to  promote  a  common  under- 
anything  to  prevent  such  use;  in  taking,  should  engage  in  any  other 
Dietrichsen  v.  Cabburn.  2  Phillips.-  concern  which  necessarily  gave  them 
52.  defendant,  who  had  appointed  a  direct  interest  ^adverse  to  the  for- 
plaintiff  his  wholesale  agent  for  the     <mer  undertaking." 

687 


§§  456a,  457  Relating  to  Contracts. 

tions  in  the  play  or  additions  thereto  shall  be  made  without  the 
consent  of  the  author,  will  bo  restrained  by  injunction  from  mak- 
ing unauthorized  changes  and  modifications  in  the  text  and 
structural  arrangement  thereof.4' 

§  456a.  Partners. — While  a  court  of  equity  has  not  the  power 
to  make  persons  who  will  not  concur  carry  on  a  business  jointly, 
for  their  common  advantage,  and  has  not  the  power  to  compel 
persons  who  have  entered  into  a  partnership  agreement,  to  act 
together,  as  partners,  yet  it  may  enjoin  one  of  the  partners  from 
entering  into  business  with  other  persons  during  the  partnership 
term,  in  violation  of  the  agreement  and  the  other  partner's  rights.48 

§  457.  Enforcing  negative  covenants ;  implication  of. — The 
former  general  rule  was  that  where  an  affirmative  engagement  of 
personal  service,  could  not  be  enforced  by  a  decree  for  specific 
performance,  a  court  of  equity  would  not  enjoin  the  breach  of  a 
collateral  negative  covenant  by  the  obligee  not  to  serve  elsewhere 
during  the  period  of  the  affirmative  engagement.49  But,  in  later 
times,  such  negative  covenants  have  been  enforced  by  injunction, 
where  the  complainant  shows  sufficient  equities.50     And  in  some 

47.  Royle  v.  Dillingham.  53  Misc.  "It  is  no  doubt  the  rale  that 
R.  (N.  Y.)  383,  104  N.  Y.  Supp.  in  respect  to  purely  negative  cove- 
783.  Compare  Lowenfield  v.  Curtis,  nants  annexed  to  or  contained  in 
72  Fed.  105.  contracts  or  leases,  courts  of  equity 

48.  England  v.  Curling,  8  Beav.  frequently  interfere  by  injunction 
229  and   indirectly    enforce    specific   per- 

49.  Kemble  v.  Kean,  6  Sim.  333;  formance  of  such  negative  covenants 
Kimberly  v.  Jennings,  6  Sim.  340;  by  prohibiting  their  breach;  and  it 
Hamblin  v.  Dinneford,  2  Edw.  Ch.  is  equally  well  settled  that  where 
529;  DePol  v.  Sohlke,  7  Robt.  280.  there  is  such  an  express  negative 
See  Morris  v.  Coleman,  18  Ves.  437,  covenant,  courts  of  equity  will  enter- 
to  the  effect  that  a  negative  cove-  tain  jurisdiction  by  injunction,  al- 
nant  not  to  serve  might  be  enforced  though  the  same  will  occasion  no 
by  injunction  where  the  other  facts  substantial  injury,  or  even  though 
were  sufficient  to  give  equitable  juris-  the  injury,  if  any,  be  reviewable  at 
diction  of  the  matter.  law."      Carlson  v.   Koerner,   226   111. 

50.  Lumley  v.  Wagner,  1  DeG.,  M.  15,  19,  80  N.  E.  562.    Per  Wilkin,  J. 

&  G.  604.     See,  also,  Dietrichsen  v.  "There     is     a    class    of     cases 

Cabburn,    2     Phillips,    52;    Rolfe    v.  where  a   defendant  may  be  enjoined 

Rolfe,  15  Sim.  88.  from  violating  the  negative  part  of 

688 


Relating  to  Contracts.  §  458 

cases  the  courts  have  gone  further  and  held  that  the  negative  cove- 
nant was  to  be  implied  from  the  affirmative  engagement;  as  an 
actor,  for  example,  who  has  agreed  to  act  at  a  particular  theater, 
thereby  agrees  not  to  act  at  the  same  time  at  another  theater  as 
plainly  as  if  a  negative  clause  were  inserted  in  his  engagement,51 
When  a  contract  contains  both  affirmative  and  negative  covenants, 
breach  of  the  negative  covenants  may  be  enjoined  although  specific 
performance  of  the  negative  covenants  cannot  be  decreed.52  It  is 
also  said  that  the  remedy  by  injunction  to  prevent  the  violation  of 
negative  covenants  does  not  depend  upon  the  subject  matter  of  the 
contract  but  it  may  relate  to  any  equitable  interest  in  or  charge 
upon  property.53  And  the  right  to  an  injunction  for  the  enforce- 
ment of  negative  covenants  in  contracts  is  independent  of  the 
question  as  to  whether  an  action  at  law  will  lie  or  not.54 

§  458.  Enforcing  trusts  by  injunctions. — Trustees  of  a  re- 
ligious society  may  be  restrained  from  diverting  an  endowment 
from  the  purpose  for  which  it  was  given.55  Contributors  to  an 
educational  fund,  on  condition  that  an  institution  should  be  per- 
manently located  at  a  specified  place,  may  have  an  injunction  to 
prevent  its  removal  from  such  place.56  In  an  action  by  school 
trustees  to  enjoin  church  trustees  from  holding  services  in  the 
room  above  while  the  school  was  in  session,  there  was  a  conflict 

an  agreement  when  neither  defend-  covenant  is  fairly  implied  where  an 
ant  nor  the  plaintiff  can  have  spe-  actor's  prior  engagement  requires  him 
cific  performance  of  the  affirmative  to  give  seven  performances  in  each 
side  or  part  of  the  agreement.  The  week.  Duff  v.  Russell,  14  N.  Y.  134. 
answer  of  equity  in  such  cases  to  the  52.  General  Electric  Co.  v.  West- 
want  of  mutuality  in  remedy  is  a  inghouse  Electric  Co.,  151  Fed.  664. 
conditional  decree  for  performance,  5,3.  Southern  Fire  Brick  Co.  v. 
or  enjoining  a  violation  of  the  cove-  Garden  City  Sand  Co.,  223  111.  616, 
nant — one  good  so   long  as   plaintiff  79  N.  E.  313. 

performs,     and    self-dissolving    upon  54.   Southern    Fire    Brick    Co.  v. 

his    failure    to    perform."       General  Garden  City  Sand  Co.,  223  111.  616, 

Electric  Co.  v.  Westinghouse  Electric  79  N.  E.  313;  Diamond  Match  Co.  v. 

Co.,  151  Fed.  664.    Per  Ray,  J.  Roeher,  106  N.  Y.  473,  13  N.  E.  419. 

51.   Montague   v.   Flockton,   L.   R.  55.   Attorney-General   v.   Welsh,   4 

16  Eq.  189;   Fechter  v.  Montgomery,  Hare,  572.     See  section  57,  ante. 

33   Beav.   22;    Webster   v.   Dillon,   3  56.  Hascall    v.    Madison    Univer- 

Jur.    (N.  S.)    432.     Such  a  negative  sity,  8  Barb.  174. 

689 
44 


&  450  Relating  to  Contracts. 

of  evidence  as  to  an  oral  agreement  by  defendants'  that  there 
should  be  no  services  in  the  church  during  school  hours,  and  it 
was  held  that  a  judgment  for  defendants  should  not  bo  disturbed, 
as  it  did  not  appear  that  the  school  was  disturbed  by  the  preaching 
and  devotions  up  stairs.57 

§  459.  Usurious  contracts. — Where  a  borrower  of  money  agrees 
to  pay  usurious  interest,  and  thereafter  pays  the  principal  of  the 
lease  with  legal  interest,  he  may  have  an  injunction  to  prevent  the 
collection  of  usurious  interest.58  And  the  maker  of  a  usurious  note 
may  have  an  injunction  to  prevent  it  from  passing  into  the  hands 
of  an  innocent  holder,  who  would  not  be  bound  by  the  equities 
attaching  to  it.59  An  injunction  will  not  ordinarily  be  granted 
against  proceedings  to  enforce  a  usurious  contract,  unless  the 
complainant  pay  or  tender  the  amount  really  due.60  But  after 
such  an  injunction  has  been  granted,  it  will  not  be  dissolved  if 
the  complainant  tenders  the  amount  which  he  owes,  where  the 
defendant  has  not,  by  his  answer,  raised  the  objection  that  the 
tender  was  not  made  before  suit.61  A  preliminary  injunction  to 
prevent  the  enforcement  of  a  deed  of  trust,  on  the  ground  that  it 
was  given  to  secure  a  usurious  contract,  will  be  continued  only 
until  the  question  of  usury  can  be  determined  ;62  and  only  as  to  that 
portion  of  the  contract  which  is  determined  by  the  verdict  at  law, 
to  have  been  usurious.63 

57.  Miller  v.  Nelson  (Ky.),  21  S.  63.  Bell  v.  Calhoun,  8  Gratt.  22; 
W.  875.                                                            Rankin  v.  Rankin,  1  Gratt.  153.    The 

58.  Waite  v.  Ballou,  19  Kan.  601.       Virginia  Code  of  1873  provides  that 

59.  Wilhelmson  v.  Bentley,  25  "  upon  a  bill  requiring  no  discovery 
Neb.  473.  of  defendant,  hut  praying  an  injunc- 

60.  Fanning  v.  Dunham,  5  Johns.  tion  to  prevent  the  sale  of  property 
Ch.  122;  Rogers  v.  Rathbun,  1  Johns.  conveyed  to  secure  the  repayment  of 
Ch.  367;  Tupper  v.  Powell,  1  Johns.  money  or  other  thing  borrowed  at 
Oh.  439;  Turpin  v.  Povall,  8  Leigh,  usurious  interest,  the  court  shall 
93.  cause  an  issue  to  be  made  and  tried 

61.  Morgan  v.  Schermerhorn,  1  at  its  bar  by  a  jury,  whether  or  not 
Paic;e,  544.  the  transaction  be  usurious.      If  the 

62.  Marks  v.  Morris,  2  Munf.  jury  find  the  transaction  usurious, 
(Va.)  407;  Fitzhugh  v.  Gordon,  2  then  the  relief  shall  be  given  as  if 
Leigh,  626.  the  party  claiming  under  the  convey- 

690 


Kelating  to  Contracts.  §  460 

§  460.  Gaming  contracts. — A  jockey  club  induced  the  owner 
of  a  mare  in  foal  to  enter  the  colt  for  a  race  known  as  the 
"  Futurity,"  to  take  place  at  a  specified  date.  When  the  colt  was 
a  vear  old,  it  was  sold  as  eligible  to  the  race,  the  club's  rules 
allowing  such  sales.  The  stakes  were  made  up  of  fees  Irom  such 
entries  and  a  purse  contributed  by  the  club.  The  colt  was  prop- 
erly entered,  and  the  purchaser  offered  to  pay  the  fee  required, 
and  to  comply  with  all  conditions  precedent.  It  was  held  that  a 
mandatory  injunction  would  lie  to  compel  the  club  to  permit  the 
eolt  to  enter  the  race,  as  by  force  of  statute  the  contract  in  ques- 
tion had  been  relieved  from  any  taint  of  illegality  as  a  gaming 
contract,  and  plaintiff  had  no  adequate  legal  remedy.64  An  in- 
junction will  not  be  granted  to  prevent  the  collection  of  a  mortgage 
or  judgment  given  to  cover  past  and  future  gambling  transactions 
in  wheat  and  pork,  but  in  such  a  case  a  court  of  equity  will  leave 
the  plaintiff,  who  has  to  allege  his  own  iniquity,  where  it  finds 
him,  to  recover  himself  as  best  he  may.65  Where-  in  an  action  at 
law,  on  a  promise  founded  on  a  gaming  consideration,  the  defend- 
ant is  surprised  at  the  trial,  he  may  have  an  injunction  against 
the  judgment,  though  he  made  no  effort  to  obtain  a  new  trial  in 
the  law  court66     On  a  bill  to  enjoin  a  judgment  on  the  ground 

ance    had    resorted    to    the    court    to  it  by  a  hill  in  equity;   or  hefore  or 

make     his     claim     available."       See  after  action  brought,  file  his  bill  in 

Meem   v.    Dulaney,    88    Va.    674,    14  equity    to    compel    the    surrender    of 

S.    E.    363;    Edmunds    v.    Bruce,    88  any  security  founded  on  such  unlaw  - 

Va.    1007,   14  S.  E.   840.  ful  and  void  consideration.     Woodson 

64.  Corrigan  v.  Coney  Island  v.  Barrett,  2  Hen.  &  M.  80;  Skip- 
Jockey  Club,  15  N.  Y.  Supp.  705.  with  v.  Strother,  3  Rand.  (Va.)  214; 
See  Jordan  v.  Kent,  44  How.  Pr.  206 ;  Andrews  v.  Berry,  3  Anst.  634; 
Costello  v.  Curtis,  13  N.  Y.  W.  Dig.  Fleetwood  v.  Jansen,  2  Atk.  467; 
20;  Harris  v.  White,  81  N.  Y.  532.  Woodroffe  v.   Farnham,  2  Vern.  291. 

65.  Smith  v.  Kammerer,  152  Pa.  But  see  Giddens  v.  Lea,  3  Humph. 
St.  98,  25  Atl.  165.  See  Sherk  v.  (Tenn.)  133,  where  it  was  held  that 
Endress,  3  Watts  &  S.  255;  Hershey  a  party  sued  on  a  note  given  for  a 
v.  Weiting,  50  Pa.  St.  240;  Hippie  gaming  consideration  wlio  makes  no 
v.  Rice,  28  Pa.  St.  406.  defense  of  the  void  consideration,  and 

66.  White  v.  Washington,  5  Gratt.  does  not  explain  the  reason  of  his 
645,  per  Baldwin,  J.:  "He  may  suf-  laches,  can  have  no  injunctive  relief 
fer  judgment  to   go   against  him  at  against  the  judgment." 

law,   and   restrain   proceedings   upon 

601 


§  460  Relating  to  Contracts. 

that  the  debt  on  which  it  was  founded,  was  for  money  won  at 
cards,  it  being  doubtful  on  the  evidence  whether  such  was  the 
consideration ;  and  if  it  was,  whether  the  plaintiff  in  the  debt, 
who  was  a  transferee  of  the  debt,  had  not  been  induced  to  take 
the  transfer  by  the  misrepresentation  of  the  debtor,  that  the  con- 
sideration of  the  debt  was  lawful,  it  was  held  that  the  preliminary 
injunction  should  continue,  and  an  issue  be  directed  to  determine 
these  doubtful  facts.67 

67.  Nelson  v.  Armstrong,  5  Gratt.  354. 


692 


Contracts  in  Restraint  of  Trade.  §  461 


CHAPTER  XIV. 

Contracts  in  Restraint  of  Trade. 

Section  461.  General  considerations  of  policy. 
461a.  Object  of  anti-trust  statutes. 

462.  Reasonableness  and  not  motive  the  test  of  validity. 
462a.  As  between   employer   and   employee— Generally. 

463.  The  modern  doctrine. 

463a.  Decisions— Alabama— California. 
463b.  Decisions  in  Illinois— Indiana— Maine. 

464.  Decisions — Massachusetts. 

465.  Massachusetts  decisions  continued. 

466.  Decisions — Michigan. 

467.  Decisions— New  Jersey. 

468.  Same  subject. 

468a.  Decisions — New  York. 

468b.  Decisions— Pennsylvania— Texas. 

469.  Federal  rule. 

469a.  Decisions — England — Canada. 

470.  On  sale  of  good  will. 

471.  As  to  unique  manufactures. 

472.  Devisible  contracts  restraining  trade. 
472a.  Adequacy  of  consideration  not  material. 

473.  Parol  restrictive  agreements. 
473a.  What  constitutes  violation. 

473b.  Agreements— Dissolution  of  partnership. 

473c.  Injunction  against  third  party. 

473d.  Agreement  not  to  use  name. 

473e.  Effect  of  provision  for  liquidated  damages. 

47  3f.  Power  of  court  to  award  damages. 

473g.  Time  of  bringing  action  to  enjoin. 

473h.  Sufficiency  of  complaint. 

Section  461.  General  considerations  of  policy.— A  contract  by 
which  a  person  binds  himself  not  to  employ  his  talents,  his  in- 
dustry or  his  capital  in  any  business  or  enterprise  whatsoever, 
will  not  be  enforced,  because  no  good  reason  can  exist  for  any  one 
imposing  such  a  restraint  upon  himself.1  Such  a  contract  is  opposed 

1.  Homer  v.  Ashford,  3  Bing.  322,  employment,  see  sections  452-456, 
326.     As  to  agreements  not  to  accept      ante. 

603 


§§  461a,  462        Contracts  ik  Kksteaint  of  Trajje. 

to  that  public  policy  which  will  not  permit  any  one  to  restrain 
a  person  from  doing  what  the  public  welfare  and  his  own  interest 
require  he  should  do.2  In  the  United  States,  too,  the  law  is  settled 
that  a  contract  in  restraint  of  labor  which  seeks  to  prevent  one  of 
the  contracting  parties  from  exercising  his.  skill  or  effort  gen- 
erally, without  limitation  as  to  place  or  time,  or  which  attempts 
to  put  a  restraint  upon  his  right  to  labor  or  to  exercise  his  skill 
greater  than  is  necessary  for  the  fair  protection  of  the  other  party 
to  the  contract,  will  not  be  enforced  by  a  court  of  equity.3  Where, 
however,  a  contract  in  restraint  of  trade  is  sufficiently  limited  aa 
to  time  and  place,  as  not  to  be  against  public  policy,  and  is  free 
from  fraud,  it  is  enforceable.4  And  the  fact  that  there  is  no  limit 
as  to  the  length  of  time  for  which  the  seller  must  refrain  from 
carrying  on  the  business  in  the  prohibited  territory  does  not  render 
the  agreement  invalid.5 

§  461a.  Object  of  anti-trust  statutes. — The  object  of  the 
Federal  and  State  statutes  to  prevent  the  formation  of  trusts  or 
conspiracies  in  restraint  of  trade  is  to  prohibit  the  formation  of 
trusts  and  combinations  and  remove  all  obstructions  in  restraint  of 
trade  and  free  competition  but  not  to  hinder  or  prevent  contract* 
on  the  part  of  corporations  or  private  individuals  made  to  foster 
or  increase  trade  or  business.6 

§  462.  Reasonableness  and  not  motive  the  test  of  validity. — 

The  motive  of  the  obligee  is  not  the  test  of  the  validity  of  a  con- 
tract or  covenant  in  restraint  of  trade.  A  party  may  legally  pur- 
chase the  trade  and  business  of  another  for  the  very  purpose  of 
preventing  competition,  and  its  validity,  if  supported  by  a  con- 
sideration, ordinarily  depends  upon  its  reasonableness  as  between 
ihe  parties.  So  where  one  sold  his  factory  in  New  York,  for 
making  friction  matches,  and  the  good  will  of  the  business,  and 

2.  Leather  Cloth  Co.  v.  Lorsont,  L.  5.  Up  River  Ice  Co.  v.  DeuJer,  114 
R.  9  Eq.  345,  354.                                          Mich.  296,  72  N.  W.  157. 

3.  Sternberg  v.  O'Brien,  48  N.  J.  6.  Southern  Fire  Brick  Co.  v.  Gar- 
Eq.  370,  372,  22  Atl.  348.  den   City  Sand  Co..  223  III.  616,   79 

4.  Eisel  v.  Hayes,  141  Ind.  41,  40  N.  E.  313. 
N.  E.  119. 

694 


Contracts  in  Restraint  of  Trade.  §  462a 

the  bill  of  sale  contained  a  covenant  that  he  would  not  "  at  any 
time  within  ninety-nine  years  engage  in  such  manufacture  or  sale, 
except  in  the  service  of  the  purchasing  company,  within  any  of 
the  States  or  Territories  except  Nevada  and  Montana,"  it  was 
held  that  the  covenant  in  restraint  of  trade  was  not  so  general  as 
to  be  invalid,  and  that  the  purchaser  was  entitled  to  an  injunction 
to  prevent  its  breach.7  It  is  not  enough  that  the  restraint  sought 
to  be  imposed  be  partial  only,  it  must  also  be  reasonable,  and  it 
is  not  reasonable  to  impose  a  restraint  upon  one  party  larger  than 
is  necessary  for  the  protection  of  the  other.8 

§  462a.  As  between  employer  and  employee;  generally — A 
contract  in  restraint  of  trade  will  be  the  more  readily  enforced  by 
injunction  against  an  employee  who,  because  of  his  employment, 
has  had  Ms  employers  trade  secrets  and  customers'  names  im- 
parted to  him.  Thus  a  covenant,  in  consideration  of  employment 
as  a  salesman  for  a  soap  factory,  not  to  make  known  any  of  the 
secrets  ho  may  receive,  nor  within  the  city  of  New  York  engage 
in  the  plaintiff's  business  for  the  period  of  two  years  after  leaving 
his  employment,  may  be  enforced  by  injunction.9    And  the  viola- 

7.  Diamond  Match  Co.  v.  Roeber,  It  is  limited  as  to  space,  since  it  ex- 
106  N.  Y.  473,  482,  13  N.  E.  419,  per  cepts  Nevada  and  Montana  from  its 
Andrews,  J.:      "The  tendency  of  re-  operation."      In   Tode   v.   Gross,    127 
cent  adjudications  is  marked  in  the  N.  Y.  480,  28  N.  E.  469,  a  covenant 
direction  of  relaxing  the  rigor  of  the  by  a  seller  of  a  cheese  factory  and 
doctrine  that  all  contracts  in  general  of  the  good  will,  custom,  and  trade- 
restraint  of  trade  are  void,  irrespec-  marks  belonging  to  the  business,  not; 
tive   of    special    circumstance?.      In-  to  communicate  the  secret  of  manu- 
deed,  it  has  of  late  been  denied  that  facture  to  any  one  else,  and  not  af- 
a  hard  and  fast  rule  of  that  kind  has  ter  a  certain  date  to  manufacture  or 
ever  been  the  law  in  England.     Ron-  sell  the  said  cheese,  or  use  the  trade 
sillon  v.  Rousillon,  L.  R.   14  Ch.  D.  marks,  was  held  to  be  valid. 
351.      .      .      .      The  covenant  in  the  8.   Brewer   v.   Marshall,    19   N.    J. 
present  case  is  partial  and  not  gen-  Eq.  537,  547;  Mandeville  v.  Harman, 
*ral.     It  is  practically  unlimited   as  42  N.  J.  Eq.  185,  7  Atl.  37;  Horner 
to  time,  but  this  under  the  authori-  v.  Graves,  7  Bing.  735,  743;  Ross  v. 
ties  is  not  an  objection,  if  the  con-  Sadgbeer,  21  Wend.   (N.  Y.)   166. 
tract   is   otherwise  good.      Ward   v.  9.  Stanley  v.  Pollard,  55  N.  Y.  St, 
Byrne,  5  M.  &  W.  548;  Mumford  v.  Rep.  157. 
Gething,  7   C.  B.    (N.  C.)    305,  317. 

695 


§  463  Contracts  in  Restraint  of  Trade 

lion  of  an  agreement  by  a  servant  or  employee  with  his  employer 
not  to  engage,  directly  or  indirectly,  within  a  prescribed  period 
after  the  termination  of  the  employment,  in  business  within  a 
certain  territory  in  competition  with  such  employer,  may  be  re- 
strained by  injunction,  although  his  services  were  neither  unique, 
special  or  extraordinary  and  although  a  certain  sum  of  money 
was  deposited  by  the  defendant  with  his  employer  as  liquidated 
damages-  for  a  breach.10  And  a  covenant  in  a  contract  of  hiring 
whereby  the  employee  engages  not  to  solicit  orders  from  the  cus- 
tomers of  hi*  employer  for  a  fixed  term  after  leaving  his  employ- 
ment is  entirely  independent  of  a  mutual  agreement  to  give  one 
week's  notice  in  case  either  party  wishes  to  terminate;  the  relation, 
and  the  soliciting  of  customers  will  be  enjoined  pendente  lite  even 
though  the  employee  was  discharged  without  notice.11  Again, 
though  there  may  be  slight  evidence  that  the  complainant  has 
suffered  or  will  suffer  great  or  irreparable  injury,  yet  where  it 
appears  that  there  has  been  a  plain  and  wilful  violation  by  the 
defendant  of  the  covenants  contained  in  his  agreement  it  is  held 
that  it  requires  but  slight  evidence  of  injury  to  justify  the  court 
in  restraining  such  acts,  it  being  impossible  to  calculate  what  may 
be  the  result  of  such  action.12 

§  463.  The  modern  doctrine. — The  modern  tendency  is  to 
enforce  general  as  well  as  partial  covenants  in  restraint  of  trade, 
if  co-extensive  only  with  the  interest  to  be  protected,  and  the 
benefit  meant  to  be  conferred,  the  modern  consideration  being 
that  a  man  shall  be  allowed  to  sell  the  good  will  of  his  business, 
and  the  fruits  of  his  industry  upon  the  best  terms  he  can  obtain.13 

10.  Reynolds  Co.  v.  Dreyer,  12  agreeing  not  to  engage  in  a  similar 
Misc.  R.  (N.  Y.)  368,  33  N.  Y.  Supp.      business  in  a  certain  locality. 

649.  13.    Diamond   Match    Co.    v.    Roe- 

11.  Mutual  Milk  &  C.  Co.  v.  Heldt,  ber,  106  N.  Y.  473,  482,  13  N.  E.  419; 
120  App.  Div.  (N.  Y.)  795,  105  N.  Morse  Co.  v.  Morse,  103  Mass.  73; 
Y.  Supp.  661.  Leather  Cloth   Co.  v.  Lorsont,  L.  R. 

12.  Davies  v.  Racer,  72  Hun  (N.  9  Eq.  345;  Collins  v.  Locke,  L.  R.  4 
Y.),  43,  25  N.  Y.  Supp.  293.  In  this  App.  Cas.  674.  In  Whittaker  v. 
case  the  agreement  was  between  a  Howe,  3  Beav.  383,  a  contract  made 
clerk    and   his   employer,   the   former  by  a  solicitor  not  to  practice  in  any 

696 


Contracts  in  Restraint  of  Trade. 


§463 


This  principle  is  illustrated  and  sustained  by  the  decisions  referred 
to  in  the  following  sections.14 


part    of    Great     Britain,    was    held 
valid.     In  Rousillon  v.  Rousillon,  L. 
R.  14  Ch.  D.  351,  a  general  contract 
not  to  engage   in  the   sale  of  cham- 
pagne   without     limit    as     to    space, 
was  enforced  as  being  under  the  cir- 
cumstances a  reasonable  contract.    In 
Jones  v.  Lees,   1   Hurl.  &  N.   189,  a 
covenant  by  the  defendant,  a  licensee 
under   a    patent  that   he   would   not, 
during  the  license,  make  or  sell  any 
slubbing  machines    without    the    in- 
vention of   the    plaintiff    applied    to 
them,  was  held  valid.     Bramwell,  J., 
said:      "It   is  objected  that  the   re- 
straint extends    to    all    England,  but 
so     does     the     privilege."       In    Ore- 
gon     Steam      Co.     v.      Winsor,     20 
Wall.   64,  22   L.   Ed.  315,   the  court 
enforced   a   covenant   by    the   defend- 
ant,   made    on    the    purchase    of    a 
steamship,  that  it  should  not  be  run 
or  employed  in  the  freight  or  passen- 
ger business,  upon  any  waters  in  the 
State  of  California,  for  the  period  of 
ten  years.    "  If,"  said  Sir  George  Jes- 
sel,   in    Printing,    etc.,    Company   v. 
Sampson,   L.   R.    19   Eq.   462,   "there 
is    one    thing    more    than    any    other 
which    public    policy    requires,   it   is 
that  men  of  full   age   and   competent 
understanding  shall  have  the  utmost 
liberty  of  contracting,  and   that  con- 
tracts, when  entered  into  freely,  shall 
be   held   good   and   shall    be   enforced 
by     courts     of     justice."     In     Mogul 
Steamship  Co.  v.  McGregor,  21  Q.  B. 
D.    544,    certain   shipowners    engaged 
in   the  carrying  trade  between   Lon- 
don and  China,  had  formed  an  asso- 
ciation   for   the    purpose    of    keeping 
up  the    rate    of    freights   in  the  tea 
trade,   and   securing    that    trade    to 
themselves.      They  accomplished  this 


purpose  by  allowing  a  rebate  of  five 
per  cent,  on  all  freights  paid  by  ship- 
pers  who   shipped    in    their    vessels 
only,  and  thus  partially  or   entirely 
excluded     the     plaintiffs,     who     were 
competing  shipowners,   from  the   tea 
carrying  trade.      The  latter  brought 
suit  for  an  injunction  and  damages, 
but  notwithstanding  the  obvious   re- 
striction upon  free  competition,  Lord 
Coleridge    held    that    the    association 
was  not  an  unlawful  combination  in 
restraint  of  trade,    and    gave    judg- 
ment for  the  defendants.     This  deci- 
sion was  rendered  in   1S88.     It  was 
sustained    on    appeal     (23   Q.   B.   D. 
598),    and    finally    affirmed    by    the 
House  of  Lords    (App.  Cas.   1892,  p. 
25).     In  Perkins  v.  Lyman,  9  Mass. 
522,   the  Supreme  Judicial   Court  of 
Massachusetts  held,   in    1813,  that  a 
contract  by  a  merchant  not  to  be  in- 
terested in  any  voyage  to  the  north- 
west  coast   of   America   was   not   in- 
valid  as   in   restraint   of   trade.      In 
Diamond   Match    Co.   v.    Roeber,    106 
N.  Y.  473,  13  N.  E.  419,  a  contract 
of   a  match    manufacturer    never   to 
manufacture     or     sell      any     friction 
matches  in  the  District  of  Columbia, 
or  in  any  part  of  the  United  States 
except  Idaho  and  Montana,  was  sus- 
tained and  enforced.     In  Navigation 
Co.    v.     Winsor,     20     Wall.     64,    22 
L.      Ed.      315,      decided      in      1873, 
a      contract      between      two      steam 
navigation     companies     engaged     in 
the    business    of    transportation    on 
the  rivers,  bays  and  waters  of  Cali- 
fornia,   and    on    the    Columbia    river 
and  its  tributaries,  respectively,  was 
declared  by  the   Supreme   Court  not 
to  be  in  restraint  of  trade,  although 
it   prohibited    the    use    of   a    certain 


GOT 


§§  463a,  463b        Contracts  in  Restraint  of  Trade. 

§  463a.  Decisions  in  Alabama;  California. — In  Alabama  a 
physician  who  sells  his  practice  and  agrees  as  a  part  of  the  con- 
tract of  sale  that  he  will  not  practice  in  the  same  city  for  a  certain 
period  of  time,  will  be  enjoined  from  violating  his  agreement.15 
Under  the  California  Code,  every  contract  in  restraint  of  trade 
is  void,  except  that  one  who  has  sold  the  good  will  of  a  business 
may  agree  not  to  carry  on  a  similar  business  within  a  specified 
county  or  town;  and  on  dissolution  of  a  partnership,  a  partner 
may  agree  not  to  carry  on  a  similar  business  in  a  town  or  city 
where  the  partnership  was  located.10 

§  463b.  Decisions  in  Illinois;  Indiana;  Maine. — In  Illinois 
contracts  in  restraint  of  trade  where  the  limitation  as  to  territory 


steamer  in  the  waters  of  California 
for  10  years.  And  in  1890  the  Su- 
preme Court  of  New  Hampshire,  in 
an  exhaustive  and  persuasve  opinion, 
held  that  contracts  by  which  a  rail- 
road corporation  leased  its  road  and 
rolling  stock  to  a  competitor  for 
many  years  were  not  necessarily 
against  public  policy  or  void  at  com- 
mon law,  when  the  purpose  of  the 
contracts  and  combinations  did  not 
appear  to  be  to  raise  the  rate  of 
transportation  above  the  standard  of 
fair  compensation,  or  to  violate  any 
duty  owing  to  the  public  by  non- 
competing  companies.  Manchester  & 
L.  R.  R.  Co.  v.  Concord  R.  Co.,  66 
N.  H.  100,  20  Atl.  383.  If  further 
authority  is  wanted  for  the  proposi- 
tion that  it  is  not  the  existence  of 
the  restriction  of  competition,  but 
the  reasonableness  of  that  restric- 
tion, that  is  the  test  of  the  validity 
of  contracts  that  are  claimed  to  be 
in  restraint  of  trade,  it  will  be  found 
in  Fowle  v.  Park,  131  U.  S.  88,  97 
9  Sup.  Ct.  658,  33  L.  Ed.  67;  Gibbs 
v.  Gas.  Co.,  130  U.  S.  396,  9  Sup. 
Ct.    553,    32    L.    Ed.    979;     In    re 


Greene,  52  Fed.  104,  118;  Hor- 
ner v.  Graves,  7  Bing.  735,  743; 
Hubbard  v.  Miller,  27  Mich.  15,  19; 
Rousillon  v.  Rousillon,  14  Ch.  Div. 
351,  363;  Leather  Cloth  Co.  v.  Lor- 
sont,  L.  R.  9  Eq.  345,  354;  Wickens 
v.  Evans,  3  Younge  &  J.  318;  Ontario 
Salt  Co.  v.  Merchants  Salt  Co.,  18 
Grant  Ch.  540;  Mallan  v.  May,  11 
Moes.  &  W.  652,  657;  Whittaker  v. 
Howe,  3  Beav.  383;  Kellogg  v.  Lar- 
kin,  3  Pin.  123,  150;  Beal  v.  Chase, 
31  Mich.  490;  Skrainka  v.  Schar- 
ringhausen,  8  Mo.  App.  522,  525; 
Wiggins  Ferry  Co.  v.  Chicago  &  A. 
R.  Co.,  73  Mo.  389;  Gloucester  Isin- 
glass Co.  v.  Russia  Cement  Co.,  154 
Mass.  92,  94,  27  N.  E.  1005;  Ther- 
mometer Co.  v.  Pool,  51  Hun,  157, 
163,  4  N.  Y.  Supp.  861;  Association 
v.  Walsh,  2  Daly,  1 ;  Hodge  v.  Sloan, 
107  N.  Y.  244,  17  N.  E.  335;  Brown 
v.  Rounsavell,  78  111.  589;  Jones  v. 
Clifford,  5  Fla.  510,  515. 

14.  See  §§  464-470  herein. 

15.  McCurry   v.   Gibson,    108  Ala. 
451,  18  So.  806. 

16.  Vulcan  Powder  Co.  v.  Hercule* 
Powder  Co.,  96  Cal.  510,  31  Pac.  581. 


698 


Contracts  in  Restraint  of  Trade.  §  464: 

is  reasonable  and  there  exists  a  legal  consideration  for  the  restraint; 
are  valid  and  enforceable  in  equity  and  in  such  cases  relief  by 
injunction  is  customary  and  proper.17  So  an  agreement  by  a  party 
not  to  operate  any  other  fire  clay  grinding  plant  on  any  land  owned 
or  controlled  by  him  or  to  sell  fire  clay  to  any  other  person  during 
the  time  of  the  contract  is  a  direct  negative  covenant,  and  while 
a  court  of  equity  might  not  compel  him  to  mine  and  sell  the 
product  to  complainants  in  conformity  with  his  agreement  yet  it 
has  jurisdiction  to  prevent  him  from  selling  to  other  parties.18  In 
Indiana  one  who  enters  into  a  valid  contract  not  to  engage  in  a 
certain  business  may  be  enjoined  from  violating  his  contract  with- 
out regard  to  his  solvency  where  there  is  no  provision  as  to  liqui- 
dated damages  in  case  of  a  breach.19  In  Maine  one  who  enters 
into  such  a  contract  may  be  enjoined  from  acting  as  a  clerk  or 
agent  of  one  engaged  in  the  same  business.20 

§  464.  Decisions ;  Massachusetts. — In  this  State  in  a.  contract 
of  sale  of  a  business  and  its  good  will,  there  is  held  to  be  an  im- 
plied covenant  that  the  vendor  will  not  interfere  with  the  enjoy- 
ment of  what  he  has  sold,  and  if  he  does,  it  is  decided,  that  such, 
interference  may  be  restrained  by  injunction.21  And  it  has  been 
held  in  the  same  State,  that  a  covenant  made  by  the  patentee  of  a 
process  of  manufacture  in  a  business  not  local  in  its  character, 
for  the  purpose  of  selling  the  patent  to  better  advantage  and  as  a 
part  of  transaction  of  sale,  and  for  one  and  the  same  consideration 
received  by  him  for  the  patent,  to  use  his<  best  efforts  to  invent 
improvements  in  the  process  and  to  transfer  them  to  the  buyer,  to 
do  no  act  which  may  injure  the  buyer  or  the  business,  and  "  at 
no  time  to  aid,  assist  or  encourage  in  amy  manner  any  competition 
against  the  same  "  is  not  void  as  in  restraint  of  trade,  and  that 
the   covenantor  may   be   enjoined   from  violating   it.22      But   in 

17.  Ryan  v.  Hamilton,  205  111.  20.  Emery  v.  Bradley,  88  Me.  357, 
191,  68  N.  E.  781.     Per  Ricks,  J.  34  Atl.   167. 

18.  Southern  Fire  Briek  Co.  v.  21.  Dwight  v.  Hamilton,  113  Masa. 
Garden  City  Land  Co.,  223  111.  616;  175. 

79  N.   E.   313.  22.  Morse     Twist     Drill     Co.     v. 

19.  O'Neal  v.  Hines,  145  Ind.  32,  Morse,  103  Mass.  73,  per  Chapman. 
43  N.  K  946.  C.  J.;  "The  language  of  the  contract 

699 


§464 


Contracts  in  Restraint  of  Trade. 


another  case  in  this  State  it  is  decided  that  a  stipulation  by  a 
manufacturer  of  fire  alarm  and  telegraph  apparatus,  on  a  sale  of 
all  his  machinery,  stock,  letters  patent,  and  inventions,  that  he 
will  not  for  ten  years  engage  in  the  manufacture  and  sale  of  such 
apparatus,  or  enter  into  competition  with  the  purchaser,  either 
directly  or  indirectly,  while  valid  in  so  far  as  the  patents  and  in- 
ventions agreed  to  be  sold  are  concerned,  is  void,  as  against  public 
policy,  in  so  far  as  it  prohibits  the  sieller  from  engaging  in  the 
manufacture  and  sale  of  such  apparatus  under  other  patents,  or 
under  no  patents  at  all,  since  the  prohibition  is  not  restricted  as 
to  place,  and  not  necessary  to  the  purchaser's  enjoyment  of  the 
patents  and  inventions  which  he  had  purchased.^ 


implies  that  when  the  plaintiff 
joined  the  defendant  in  his  new  busi- 
ness they  had  confidence  in  his  me- 
chanical skill  and  ingenuity,  and  in- 
tended to  avail  themselves  of  it  for 
the  benefit  of  the  business  in  which 
he  had  induced  them  to  embark;  and 
that  it  was  a  material  part  of  the 
consideration  for  which  they  paid  him 
bo  considerable  a  sum  and  invested 
their  capital.  It  was  not  in  restraint 
of  trade  nor  contrary  to  public  policy 
that  the  defendant  should  contract  to 
render  to  plaintiffs  his  exclusive  ser- 
vices in  this  respect.  And  though  the 
defendant  did  not  technically  become 
a  partner  with  plaintiffs,  yet  he  be- 
came the  associate  of  the  other  stock- 
holders in  the  business,  he  himself  in- 
ducing them  to  join  him  in  it  and 
having  a  large  interest  in  the  forma- 
tion of  the  company;  and  the  same 
principle  that  enables  a  partner  to 
bind  himself  to  do  nothing  in  compe- 
tition with  the  business  of  the  firm, 
ought  to  apply  to  him."  In  Leather 
Cloth  Co.  v.  Lorsont,  L.  E.  9  Eq.  345, 
the  vendors  of  a  certain  process  of 
manufacture  agreed  that  they  would 
not  carry  on  the  business  in  any  part 
of  Europe,  nor  communicate  the  pro- 


cess to  any  person  so  as  to  interfere 
with  the  exclusive  enjoyment  of  the 
purchaser  of  the  benefits  to  be  pur- 
chased. It  was  held  that  the  re- 
straint was  not  greater  than  \vu« 
necessary  for  the  protection  of  the 
purchaser,  and  it  was  enforced  by  in- 
junction. In  Ingram  v.  Stiff,  5  Jur. 
(N.  S.)  947,  and  Ainsworth  v.  Bent 
ley,  14  Week.  Rep.  630.  an  agreement 
by  the  seller  of  a  periodical  not  to 
publish  another  similar  one  was  en- 
forced by  injunction.  In  Stiff  v.  Cas- 
sell,  2  Jur.  (N.  S.)  348,  the  defend- 
ant agreed  with  plaintiff  to  write  two 
tales  for  a  periodical,  and  that  he 
would  not  write  for  any  other  publi- 
cation which  should  be  sold  for 
less  than  a  certain  price,  for 
the  space  of  a  year,  and  the 
restriction  was  held  to  be  valid, 
though  it  had  no  limitation  as  to 
space. 

23.  Gamewell  Fire  Alarm  Tel.  Co. 
v.  Crane,  160  Mass.  50,  35  N\  E.  98. 
per  Field,  C.  J. :  "  The  only  ground 
on  which  this  restriction  can  be  main- 
tained is  that  it  is  reasonably  neces- 
saiy  for  the  beneficial  enjoyment  by 
the  plaintiff  of  the  property  it  bought 
of  the  defendant,  or  if  this  is  not  so, 


700 


CONTEACTS   IN    ReSTEAINT    OF    TEADE. 


§465 


§  465.  Massachusetts  decisions  continued. — In  Massachusetts, 
contracts  in  unreasonable  restraint  of  trade  are  held  to  be  void  as 
against  public  policy,  because  they  tend  to  deprive  the  public  of 
the  services  of  men  in  the  employments  and  capacities  in  which 
they  may  be  most  useful,  and  that  they  expose  the  public  to  the 
evils  of  monopoly.24  The  consideration  of  such  contracts  is  deemed 
by  the  law  to  be  not  merely  insufficient  and  invalid  but  also 
vicious,  and  to  rest  on  the  same  ground  as  if  such  contracts  were 


that  the  law  in  modern  times  does 
not  regard  such  an  agreement  as 
against  public  policy.  So  far  as  we 
are  aware,  in  every  modern  case  in 
this  commonwealth,  except  one  where 
a  contract  in  restraint  of  trade  has 
been  held  valid,  the  restriction  has 
been  limited  as  to  space.  In  Taylor 
v.  Blanchard,  13  Allen,  370.  the 
parties  entered  into  a  partnership  for 
carrying  on  '  the  trade  or  business 
of  manufacturing  shoe  cutters,'  and 
it  was  provided  that  '  at  whatever 
time  the  said  co-partnership  shall  be 
determined  and  ended '  the  defend- 
ant '  shall  not,  nor  will  at  any  time 
or  times  hereafter  either  alone  or 
jointly  with,  or  as  an  agent  for  any 
person  or  persons  whomsoever,  set 
up,  exercise,  or  carry  on  the  said 
trade  or  business  of  manufacturing 
and  selling  shoe  cutters  at  any  place 
within  the  aforesaid  commonwealth 
of  Massachusetts,  and  shall  not,  nor 
will  set  up,  make,  or  encourage  any 
opposition  to  the  said  trade  or  busi- 
ness hereafter  to  be  carried  on '  by 
the  plaintiff.  The  manufacture  of 
shoe  cutters  was  an  art  which  could 
be  carried  on  only  by  persons  in- 
structed in  it,  and  the  business  was 
confined  to  the  plaintiff  and  three 
other  persons;  but  the  court  held  the 
agreement  void.  In  Bishop  v.  Palmer, 
146    Mass.    469,    16    N.    E.    299,    the 


plaintiff,  being  engaged  in  the  manu- 
facturing and  selling  of  bedquilts  and 
comfortables,  conveyed  to  the  defend- 
ant his  entire  '  business  plant  and 
enterprise  as  a  manufacturer  of  and 
dealer  in  bedquilts  and  comfortables,' 
together  with  the  good  will  of  the 
business,  and  all  the  machinery,  im- 
plements;  and  utensils  used  by  him 
in  said  business,  and  agreed  '  that  for 
and  during  the  period  of  five  yearB 
from  the  date  hereof  he  will  not 
either  directly  or  indirectly,  in  his 
own  name  or  in  the  name  of  any 
other  person,  engage  in  the  business 
of  making  or  dealing  in  bedquilts, 
etc.,  or  of  any  business  of  which  that 
may  form  any  part.'  It  was  held  that 
this  was  clearly  illegal  and  void  as 
being  in  restraint  of  trade  because 
not  limited  as  to  space.  See,  also, 
Alger  v.  Thacher,  19  Pick.  51;  Pierce 
v.  Fuller,  8  Mass.  223,  226;  Perkins 
v.  Lyman,  9  Mass.  522;  Stearns  v. 
Barrett,  1  Pick.  443;  Palmer  v. 
Stebbins,  3  Pick.  188;  Gilman  v. 
Dwight,  13  Gray,  356;  Angier  v. 
Webber,  14  Allen,  211;  Dean  v.  Em- 
erson, 102  Mass.  480;  Dwight  v. 
Hamilton,  113  Mass.  175;  Boutelle  v. 
Smith,  116  Mass.  Ill;  Ropes  v.  Up- 
ton, 125  Mass.  258;  Handforth  v. 
Jackson,  150  Mass.  149,  22  N.  E. 
634." 

24.  Alger  v.  Thacher,  19  Pick.  51. 


701 


§  466  Contuacts  in  Kestkaint  of  Trade. 

forbidden  by  statute.25  So  a  covenant  by  which  the  seller  of  a 
manufacturing  business  agreed,  without  any  limitation  of  spaa.-, 
that  during  the  period  of  five  years  he  would  not  engage  in  that 
business,  or  any  business  of  which  that  might  form  a  part,  was 
held  to  be  illegal  and  void.26  And  if  the  bad  part  of  the  considera- 
tion in  such  cases  is  not  severable  from  the  good,  the  whole  con- 
tract must  fail.27  When  two  covenants  between  parties  are  distinct 
and  divisible  one  may  be  enforced  as  valid,  while  the  other  may 
be  void  because  without  limitation  in  its  restraint  of  trade.  Thus, 
where  a  person  covenanted  not  to  engage  in  a  certain  business 
within  a  certain  county,  and  in  a  second  covenant  bound  himself 
not  to  be  interested  for  five  years  in  the  same  business  within  the 
United  States,  he  was  held  to  be  liable  for  a  breach  of  the  first 
covenant,  though  the  second  might  be  void  as  in  restraint  of  trade.28 

§  466.  Decisions ;  Michigan. — Where  a  manufacturing  firm  in 
Michigan  sold  its  stock  and  materials  to  an  Illinois  corporation 
engaged  in  a  similar  business  in  Illinois,  and  agreed  for  five  years 
not  to  engage  in  the  business  in  Michigan  or  in  seven  other  speci- 
fied States,  nor  to  allow  the  premises  where  it  had  been  carrying 
on  its  business  in  Michigan  to  be  used  for  that  purpose,  nor  to  sell 
them  for  such  use,  without  the  consent  of  the  buying  corporation, 
it  was  held  that  the  violation  of  the  agreement  would  not  be  en- 
joined, it  being  void  on  the  ground  of  public  policy,  for  to  enforce 
such  contracts  might  result  in  closing  every  factory  in  Michigan.29 
But  a  contract  made  by  a  merchant  with  a  purchaser  of  his  stock 
and  the  good  will  of  his  business,  not  to  engage  in  the  same  kind 

25.  Bishop  v.  Palmer,  146  Mass.  51;  Clark  v.  Ricker,  14  N.  H.  44; 
469,  474,  16  N.  E.  299.  Woodruff  v.    Hinman,    11    Vt.  592; 

26.  Bishop  v.  Palmer,  146  Mass.  Pickering  v.  Ilfracombe  R.  Co.,  L. 
469,  16  N.  E.  299;  Taylor  v.  Blanch-  R.  3  C.  P.  2.",5;  Harrington  v.  Vic- 
ard,  13  Allen,  370;  Dean  v.  Emer-  toria  Dock  Co.,  L.  R.  3  Q.  B.  D.  549. 
Kon,  102  Mass.  4S0;  Morse  Twist  28.  Dean  v.  Emerson,  102  Mass. 
Drill  Co.  v.  Morse,  103  Mass.  73;  480;  Mallan  v.  May,  11  M.  &  W.  653; 
Davies  v.  Davies,  L.  R.  36  Ch.  D.  359.  Price  v.  Green,  16  M.  &  W.  346. 

27.  Woodruff  v.  Wentworth,  133  29.  Western  Wooden  Ware  Assn. 
Mass.  309,  314;  Rand  v.  Mather,  11  v.  Starkey,  84  Mich.  76,  47  N.  W. 
Cush.  1 ;  Robinson  v.  Green.  3  Met.  604.  See,  also,  Wright  v.  Ryder,  36 
159,  101;  Bliss  v.  Negus,  8  Mass.  46,  Cal.  342. 

702 


Contracts  in  Restraint  of  Trade.  §  467 

of  business  in  the  same  town  for  a  specified  period,  is  valid,  and 
will  be  protected  by  injunction/* 


30 


§  467.  Decisions ;  New  Jersey. — In  New  Jersey,  a  contract  by 
which  a  physician,  on  entering  into  the  employ  of  another  physi- 
cian, "  hereby  covenants  and  agrees  not  to  engage  in  the  practice 
of  medicine  or  surgery  in  the  city  of  Newark,  at  any  time  here- 
after," was  decided  to  be  too  unreasonable  and  oppressive  to  be 
enforceable  by  injunction,  because  thus  to  enforce  the  covenant 
according  to  its  terms,  would  be  to  forever  exclude  the  defendant 
from  the  medical  profession  in  Newark,  while  the  complainant 
might  within  a  month  lose  his  life,  or  reason,  or  remove  to  another 
field  of  practice.  It  should  be  observed  that  this  decision  was  put 
partly  on  the  ground  that  professional  skill,  experience  and  repu- 
tation constitute  part  of  the  individuality  of  a  physician,  and  die 
with  him,  and  cannot  be  sold,  or  pass  to  his  personal  representa- 
tives as  property  rights.31  In  England  a  different  rule  has  been 
applied  to  the  assistant  of  a  druggist,  who,  in  consideration  of  the 
salary  to  be  paid  him,  agreed  that  he  would  not,  at  any  time  after 
leaving  the  service  of  plaintiff,  engage  either  directly  or  indirectly 
in  the  business  of  chemist  or  druggist  within  the  town  of  Taunton.32 

30.  Thompson  v.  Andrus,  73  Mich.  delivering  the  opinion  of  the  court  in 
551,  41  N.  W.  G83.  In  this  case  an  Hitchcock  v.  Coker,  6  Ad.  &  El.  438, 
attempt  to  continue  the  business  os-  453,  said:  'The  good  will  of  a 
tensibly  in  the  name  of  the  covenant-  trade  is  a  subject  of  value  and  price, 
or's  wife,  but  managed  by  him,  was  It  may  be  sold,  bequeathed  or  be- 
enjoined.  See,  also.  Up  River  Ice  Co.  come  assets  in  the  hands  of  the  per- 
v.  Denier,  114  Mich.  296,  72  N.  W.  sonal  representative  of  a  trader.  And 
157;  Hubbard  v.  Miller,  27  Mich.  if  the  restriction  as  to  time  is  to  be 
15;  Beal  v.  Chase,  31  Mich.  held  to  be  illegal  if  extended  beyond 
490;  Doty  v.  Martin.  32  Mich.  the  period  of  the  party  by  himself 
462;  Caswell  v.  Gibbs,  33  Mich.  331;  carrying  on  the  trade,  the  value  of 
Grow  v.  Seligman,  47  Mich.  610,  11  such  good  will,  considered  in  those 
N.  W.  404;  Watrou9  v.  Allen,  57  various  points  of  view,  is  altogether 
Mich.  306,  24  N.  W.  104.  destroyed.    If,  therefore,  it  is  not  un- 

31.  Mandeville  v.  Harman,  42  N.  reasonable,  as  it  is  not,  to  prevent  a 
J.  Eq.  185,  7  Atl.  37.  servant  from  entering  into  the  same 

32.  Mandeville  v.  Harman,  42  N.  trade  in  the  same  town  in  which  his 
J.  Eq.  185,  192.  7  Atl.  37,  per  Fleet,  master  lives,  so  long  as  the  master 
V.    C:      "Chief   Justice   Tindal,   in  carries  on  the  trade  there,  we  can- 

703 


§468 


Contracts  in  Restraint  of  Trade. 


§  468.  Same  subject. — An  agreement,  for  a  valuable  considera- 
tion, not  to  engage  in  the  city  of  Trenton  in  the  "  galvanized  iron 


not  think  it  unreasonable  that  the 
restraint  should  be  carried  further 
and  should  be  allowed  to  continue  if 
the  master  sells  the  trade  or  be- 
queathes it,  or  it  becomes  the  prop- 
erty of  his  personal  representative.' 
This  doctrine  has  been  adhered  to  in 
subsequent  cases  and  is  now  the  es- 
tablished law  of  Great  Britain.  Pem- 
berton  v.  Vaughan,  10  Q.  B.  87; 
Elves  v.  Crofts,  10  C.  B.  241;  At- 
kyns  v.  Kinnier,  4  Exch.  776."  A 
valuable  note  by  the  reporter  of  the 
New  Jersey  Chancery  Reports  is  in- 
serted here,  and  due  acknowledgment 
made  to  him:  'Physicians'  and  sur- 
geons' contracts,  not  to  practice  their 
professions,  have  been  held  valid  in 
the  following  instances:  for  fourteen 
years  within  ten  miles,  Davis  v.  Ma- 
son, 5  T.  R.  118;  at  any  time  within 
seven  miles,  Sainter  v.  Ferguson,  7 
C.  B.  716;  at  any  time,  within  two 
and  a  half  miles,  Atkyns  v.  Kinnier, 
4  Exch.  776;  at  W.  or  within  twelve 
miles  thereof  without  plaintiff's  con- 
sent, during  plaintiff's  lifetime  or 
within  ten  years  after  his  decease, 
Eox  v.  Scard,  33  Beav.  327;  so  long 
as  R.  G.  or  his  successors  should 
carry  on  business  at  N.,  or  within 
ten  miles  thereof.  Gravely  v.  Barnard, 
43  L.  J.  Ch.  659,  L.  R.  18  Ch.  518; 
not  to  locate  with  a  view  of  resuming 
his  profession  within  a  circle  of 
thirty  miles  around  T.,  Mell  v. 
Moony,  30  Ga.  413  (approved  in 
Goodman  v.  Henderson,  68  Ga.  570)  ; 
a  sale  of  a  house  and  practice  with  a 
condition  not  to  establish  a  medical 
practice  within  the  township  of 
Chili,  nor  within  six  miles  of  the 
house,  Linn  v.  Sigsbee,  67  111.  75;  a 
similar  sale,  with  a  condition  not  to 


practice  in  the  town  nor  within  fif- 
teen miles  thereof  '  by  himself,  agent, 
or  otherwise,'  Miller  v.  Elliott,  I 
Ind.  484;  a  sale  of  land  and  a  prac- 
tice, with  a  stipulation  not  to  re- 
settle in  M.  so  long  as  the  plaintiff 
sbould  be  located  there,  allows  the 
vendor  to  practice  but  not  to  reside 
there,  Haldeman  v.  Simonton,  55 
Iowa,  144;  a  sale  of  W.'s  good  will 
of  practice,  said  W.  to  quit  the  prac- 
tice in  favor  of  B.,  the  purchaser,  was 
construed  to  include  the  territory 
over  which  W.'s  practice  had  ex- 
tended, which  could  be  established  by 
parol,  Warfield  v.  Booth,  33  Md.  63; 
a  conveyance  of  the  land  to  the  pur- 
chaser's wife,  by  whom  the  money  for 
the  lands  and  practice  is  paid,  is  no 
defense  for  the  vendor's  violating  his 
covenant,  Dwight  v.  Hamilton,  113 
Mass.  175;  and  see  Doty  v.  Martin, 
32  Mich.  462;  to  remove  from  a  city 
and  vicinity  and  refrain  from  prac- 
tice in  said  city  and  vicinity  for  at 
least  five  years,  was  construed  to  era- 
brace  all  territory  within  ten  miles 
ot  the  city  limits.  Timmerman  v. 
Dever,  52  Mich.  34,  17  N.  W.  230; 
see  Carroll  v.  Hickes,  10  Phila.  308; 
a  purchase  of  the  obligor's  house  and 
of  one-half  of  his  medicines,  jars  and 
bottles,  and  payment  therefor,  will 
sustain  an  action  on  his  bond  not  to 
settle  or  continue  as  a  practitioner 
of  medicine  within  fifteen  miles  of  P., 
after  a  specified  time,  Thompson  v. 
Means,  11  Sm.  &  M.  604;  a  bond  by 
a  physician  that  he  would  not  locate 
himself  and  practice  in  his  profession 
within  six  miles  of  C,  and  in  case  he 
should  so  locate  or  practice,  he 
would  pay  the  obligor  a  certain  sum 
for   each   and   every   month  that   he 


704 


CONTEACTS    IN    ReSTEAIXT   OF    TeADE. 


§468 


cornice,  tin  and  sheet  iron  business,"  is  not  invalid  because  not 
specifying  any  limit  of  time,  and  it  is  not  necessary  before  a  pre- 


should  so  practice,  is  forfeited  if  he 
practice  within,  although  he  resides 
without,  the  prescribed  limits,  Smith 
v.  Smith,  4  Wend.  468;  *  in  the  vil- 
lage of  S.  or  town  of  S.  for  five  years,' 
Mott  v.  Mott,  11  Barb.  127;  not  to 
practice  medicine,  nor  in  any  man- 
ner do  business  as  a  physician  in  the 
county  of  Oswego  at  any  time  after 
May  1,  1851,  Holbrook  v.  Waters,  9 
How.  Pr.  335;  a  sale  of  a  house  and 
practice  with  an  agreement  not  to 
practice  in  the  town  for  ten  years, 
and  if  required  by  plaintiff  to  give  a 
bond  in  $5,000  penalty  not  to  do  so, 
will  not  fix  the  plaintiff's  damages 
for  violation  of  the  covenant  at 
$5,000,  where  such  bond  was  never 
asked  for  or  given,  Amidon  v.  Gan- 
non, 6  Hun,  384;  see  Niver  v.  Ross- 
man,  18  Barb.  50;  a  sale  of  defend- 
ant's office  furniture  and  good  will, 
with  a  stipulation  to  remove  not  less 
than  twelve  miles  from  the  place  and 
never  to  establish  himself  as  a  phy- 
sician within  twelve  miles  without 
plaintiff's  consent,  and  to  use  his  in- 
fluence to  throw  his  practice  to  the 
benefit  of  plaintiff,  and  to  give  coun- 
tenance to  no  other  in  that  direction, 
McClurg's  Appeal,  58  Pa.  St.  51;  a 
bond  in  $1,000,  conditioned  that  B. 
should  not  '  practice  medicine  within 
five  miles  of  S.}  in  which  place  he 
has  this  day  deeded  certain  property 
to  T.,'  indicates  on  its  face  that  the 
$1,000  is  a  penalty,  but  circumstances 
showing  an  intention  that  it  was  li- 
quidated damages  may  be  proved, 
Bigony  v.  Tyson,  75  Pa.  St.  157; 
'not  to  practice  within  a  radius  of 
five  miles '  of  a  certain  place,  Bett's 
Appeal,  10  W.  N.  Cas.  431;  nor  in 
the    neighborhood,    MoNutt    v.    Mc- 


Ewen,  1  W.  N.  Cas.  552;  mutual  co- 
venants  by    partners   that   if  A.,   at 
the  expiration  of  the  term  should  sell 
out  his  real  estate  to  B.,  he  would 
not  settle  himself  in  pracice  within 
twenty  miles  of  B.;   and  that  B.,  if 
he    did   not   buy  A.    out,   would   not 
settle     himself     in     practice     within 
ten  miles  of  A.,  are  binding,  Butler 
v.  Burleson,  16  Vt.  176.  As  to  similar 
contracts  between  dentists,  see  Mal- 
lan  v.  May,  11  M.  &  W.  653;  Horner 
v.  Graves,  7  Bing.  735;  Cook  v.  John- 
eon,  47  Conn.   175;   Clark  v.  Crosby, 
37   Vt.    188;    Alcock    v.    Giberton,  5 
Duer  76;  and  druggists,  Hastings  v. 
Whitley,  2  Exch.  611;   Hitchcock  v. 
Coker,  6  Ad.  &  Ell.  438;  Hay  ward  v. 
Young,  2  Chit.  407;  Price  v.  Green, 
16  M.  &  W.  346;  Ward  v.  Hogan,  11 
Abb.  N.  C.  478;  Baker  v.  Cordon,  86 
N.   C.    116;    and  undertakers,   Hall's 
Appeal,  60  Pa.   St.  458;    and  grave- 
stone makers,  Duffy  v.   Shockey,    11 
Ind.  70;  and  attorneys,  Bunn  v.  Guy, 
4   East,    190    (criticised  in  Bozon  v. 
Farlow,    1    Meriv.    471);    Nichols   v. 
Stretton,  10  Q.  B.  346,  7  Beav.  42; 
Dendy  v.  Henderson,   11   Exch.   194; 
Whitaker  v.  Howe,  3  Beav.  383  (said 
to    have    been    overruled,    Benj.    on 
Sales,    §    525);    Tallis   v.   Tallis,    16 
Jur.  746,  note;  1  Smith's  L.  C.   (8th 
ed.)    766;  Wiley  v.  Baumgardner,  97 
Ind.  69;   Aubin  v.  Holt,  2  K.  &  J. 
66;    Howard   v.    Woodward,    10   Jur. 
N.  S.  1123;  Galsworthy  v.  Strutt,  17 
L.  J.  Exch.  226;   Smalley  v.  Greene, 
62    Iowa,    241;    and    school-teachers, 
Spier  v.   Lambdin,  45  Ga.  319;    and 
tavern-keepers.  Heichew  v.  Hamilton, 
3  Greene  (Iowa),  596,  4  Greene,  317; 
Evans  v.  Elliott,  20  Ind.  283;  Harri- 
son v.  Lockhart,  25  Ind.  112;  Studa- 


705 


45 


§468 


Contracts  in  Restraint  of  Trade. 


liminary  injunction  issue  restraining  the  violation  of  such  agree- 
ment, that  the  rights  of  the  parties  be  established  by  a  judgment 
at  law.33 


baker  v.  White,  31  Ind.  211;  Mc- 
Alister  v.  Howell,  42  Ind.  15;  Stines 
v.  Dorman,  25  Ohio  St.  580;  Hatcher 
v.  Andrews,  5  Bush,  5G1  ;  see  Mos- 
sop  v.  Mason,  16  Grant's  Ch.  302,  17 
Grant's  Ch.  300;  Elliott's  Appeal,  60 
Pa.  St.  161;  and  barbers,  Burrill  v. 
Daggett,  77  Me.  545;  and  photograph- 
ers, Baumgarten  v.  Broad  way,  77  N. 
C.  8;  Dean  v.  Emerson,  102  Mass. 
480;  and  publishers,  Tallis  v.  Tallis, 
1  El  &  Bl.  301;  Ingram  v.  Stiff,  5 
Jur.  N.  S.  947;  Ward  v.  Beeton,  23 
W.  R.  533;  Conrad  v.  Dowling,  7 
Blackf.  481;  Spicer  v.  Hoop,  51  Ind. 
365;  Presbury  v.  Fisher,  18  Mo.  50; 
Noah  v.  Webb,  1  Edw.  Ch.  604; 
Dakin  v.  Williams,  11  Wend.  67; 
Beal  v.  Chase,  31  Mich.  490;  and 
book-binders,  Drake  v.  Dodsworth,  4 
Kan.  159;  and  dressmakers,  Morgan 
v.  Perhamus,  36  Ohio  St.  517;  Mor- 
ris v.  Moss.  25  L.  J.  N.  S.  194;  and 
milliners.  Shackle  v.  Baker,  14  Ves. 
468.  See  further,  19  Cent.  L.  J.  62, 
81,  202,  27  Alb.  L.  J.  24." 

33.  Carll  v.  Snyder  (N.  J.),  26 
Atl.  977,  per  Bird,  V.  C:  "lam 
satisfied  that  the  proof  is  sufficiently 
clear  and  definite  to  justify  the  court 
in  awarding  a  perpetual  injunction 
upon  final  hearing,  in  case  it  should 
stand  as  it  now  does  unimpeached. 
I  am  equally  well  satisfied  that  the 
insistment  that  the  restraint  is  in- 
definite as  to  time,  and  therefore  un- 
reasonable, ought  not  to  prevail.  I 
think  a  careful  study  of  the  case  of 
Mitchel  v.  Reynolds,  reported  in  1 
Smith,  Leading  Cas.  (9th  ed.),  694, 
with  the  various  annotations,  botb 
by  the  English  and  American  editors, 
will  satisfy  the  mind  as  to  the  prin- 


ciple  upon   which   contracts   of   this 
nature,    not   only    may    well    be,    but 
really  ought  to  be,  supported,  when 
indefinite  as  to  time.     The  purchaser 
of  such  good  will  may  fairly  be  sup- 
posed to  purchase,  not  only   for  his 
own  immediate  use  or  benefit,  but  for 
the    use   of    his    personal    representa- 
tives, in  the  same  sense  that  he  pur- 
chases personal  property  or  real  es- 
tate.     I  can  see  no  just  reason  for 
his  not  being  able  in  the  law  to  make 
such  an  investment  which  shall  pass 
to  bis  assigns,  executors,  or  adminis- 
trators.    It  cannot  be  said,  when  it 
is    limited    to    a    particular    district, 
that   this    in    any   manner    interferes 
with  sound   public  policy.     It  would 
not  be  a  violation  of  the  rule  which 
required  such  contracts  to  be  in  har- 
mony witli  the  interests  of  the  com- 
munity at  large  in  case  the  stipula- 
tion were  to  be  that  the  covenantee 
should   not   carry    on    the    trade   in 
question  for  twenty  or  thirty  years; 
and.  if  not  for  that  periad  of  time, 
then  certainly  it  would  not  be  if  the 
covenant  extended  to  a  lifetime.  With 
this  in  mind,  when  the  object  of  the 
prohibition  put  upon  such  contracts, 
in  view  of  a  sound  public  policy,  is 
considered,  it  will  be  still   more  ap- 
parent  that    this    contract    ought    to 
be  upheld.      Sound  public  policy   re- 
quires that  every  individual  shall  be 
employed.      The  community    is    enti- 
tled to  his  honest  toil,  whether  man- 
ual,   mechanical    or    purely    intellec- 
tual.    This  being  so,  and  such  policy 
upholding  contracts  for  a  definite  pe- 
riod of  time,  it  is  not  to  be  presumed 
that  the  covenantee,  in  any  such  case, 
will  spend  the  time,  which  the  law 

06 


Contracts  in  Restraint  of  Trade. 


468a 


§  468a.  Decisions ;  New  York. — No  contract  is  void  as  being 
in  general  restraint  of  trade  which,  upon  sufficient  consideration, 
operates  simply  to  prevent  a  party  from  engaging  or  competing  in 
the  same  business  as  the  other  contracting  party.34  And  an  agree- 
ment by  vendors  of  a  business  not  to  engage  in  such  business  may 
be  enforced  by  injunction  enjoining  a  breach.35  So  a  covenant  not 
to  engage  in  the  same  business  within  a  restricted  territory  for  a 
specified  time,  made  upon  the  sale  of  a  business  and  its  good  will, 


regards  (supposing  that  there  must 
be  a  period  limited  in  the  contract), 
in  idleness,  or  in  indifference  to  the 
demands  of  such  public  policy,  wait- 
ing the  time  when  the  periol  fixed  by 
the  contract  shall  have  expired,  in 
order  that  he  may  engage  once  more 
in  the  employment  which  he  had 
agreed  to  abandon.  In  such  matters 
the  public  welfare,  which  the  law  re- 
gards, is  an  essential  element  of  con- 
sideration; but  the  interest  of  the 
individual  in  his  own  welfare  is  in- 
finitely more  efficacious  and  poten- 
tial in  securing  the  public  good,  al- 
though that  may  not  be  in  his  mind. 
He  who  has  energy  and  integrity 
enough  to  establish  a  business  which 
is  worthy  of  the  name,  and  for  which 
others  will  bid  a  fair  price,  will  not 
wait  for  the  protection  of  the  pater- 
nal hand  to  make  his  footprints  in 
other  quarters.  In  the  following 
cases  there  was  no  limit  as  to  time, 
and  it  will  be  observed  that  in  many 
of  them  resistance  was  made  to  their 
enforcement  on  this  account,  but 
without  success:  Richardson  v.  Pea- 
cock, 26  N.  J.  Eq.  40,  28  N.  J.  Eq. 
151,  and  33  N.  J.  Eq.  597;  Hitch- 
cock v.  Coker,  6  Ad.  &  El.  439;  Hast- 
ings v.  Whitley,  2  Exch.  611;  Mallan 
v.  May,  11  Mees.  &  W.  653;  Bowser 
v.  Bliss,  7  Blackf.  344;  Pierce  v.  Ful- 
ler, 8  Mass.  223;  Palmer  v.  Stebbins, 
3  Pick.   188;   Diamond  Match  Co.  v. 


Roeber,  106  N.  Y.  473,  13  N.  E.  419, 
423.  Counsel  for  defendants  urged 
that  this  was  not  a  case  for  a  pre- 
liminary injunction,  since  the  right 
of  the  complainant  had  not  been  es- 
tablished at  law.  I  have  given  this 
branch  of  the  case  not  a  little  atten- 
tion. It  seems  to  me  that,  if  a  plain 
breach  of  contract  will  ever  justify 
a  preliminary  injunction,  this  is 
such.  The  rights  of  the  parties  are 
thoroughly  well  defined  by  their 
agreement.  While  they  might  be 
more  securely  fixed  by  a  judgment  at 
law,  they  could  not  be  more  certainly 
defined — more  securely  fixed  by  a 
judgment  at  law  because  that  is 
final,  but  that  could  only  rest  upon 
the  undisputed  evidence  upon  which 
this  court  is  called  upon  to  pro- 
nounce its  judgment  preliminarily. 
A  preliminary  injunction  was 
awarded  in  the  case  of  Richardson  v. 
Peacock,  supra,  and,  although  that 
case  went  to  the  Court  of  Errors  and 
Appeals,  the  action  of  this  court  in 
that  behalf  was  not  questioned.  33 
N.  J.  Eq.  597;  Diamond  Match  Co. 
v.  Roeber,  100  N.  Y.  473,  13  N.  E. 
419. 

34.  Leslie  v.  Lorillard,  110  N.  Y. 
519,  534,  18  N.  E.  363. 

35.  Mackinnon  Pen  Co.  v.  Foun- 
tain Pen  Co.,  48  N.  Y.  Super.  Ct. 
442. 


ID7 


§  468b  Contracts  in  Restraint  of  Trade. 

as  an  inducement  thereto,  is  valid  and  enforceable  by  injunction, 
although  such  business  is  a  professional  one.36  And  where  a  firm 
sold  out  its  business  to  a  corporation  and  agreed  not  to  engage  in 
the  same  business  within  the  limits  of  the  United  States  except  as 
an  employee  of  the  purchaser,  it  was  held  that  such  a  covenant 
was  valid  and  enforceable  and  that  the  purchaser  was  entitled  to 
an  injunction  restraining  the  seller  from  a  breach  of  such  cove- 
nant.37 Again,  a  by-law  of  the  Associated  Press  of  New  York, 
providing  that  no  member  shall  receive  or  publish  the  regular  news 
dispatches  of  any  other  news  association  covering  a  like  territory, 
and  organized  for  a  like  purpose,  is  not  void  as  in  restraint  of 
trade,  and  an  injunction  against  a  breach  of  it  may  be  granted.38 

§  468b.  Decisions;  Pennsylvania;  Texas. — In  Pennsylvania 
it  has  been  decided  that  an  employee  who  enters  into  a  contract 
with  his  employer  not  to  engage  in  the  same  business  in  a  certain 
territory  within  a  specified  time  after  the  termination  of  his  em- 
ployment may  be  enjoined  against  the  violation  of  such  agree- 
ment.39 In  this  State  the  existence  of  an  alleged  agreement  in 
restraint  of  trade  should  be  established  by  clear  and  satisfactory 
evidence  in  order  to  justify  the  court  in  restraining  its  breach  by 
injunction.40  And  when  a  court  of  equity  is  called  upon  to  enjoin 
a  person  against  the  free  exercise  of  a  trade,  the  violation  of  the 
agreement  ought  not  to  be  doubtful.41  In  Texas  an  injunction 
will  issue  to  prevent  the  breach  of  an  agreement  by  a  vendor  not 
to  engage  in  a  certain  business  for  a  specified  period  of  time  with- 
out regard  to  whether  substantial  damages  would,  or  would  not, 
result  from  such  a  breach.42 

36.  Niles  v.  Fenn,  12  Misc.  R.   (N.       Press  of  State  of  New  York,  130  N. 
Y.)    470,   33   N.    Y.    Supp.    857.      So       Y.  662,  32  N.  E.  981. 

holding  in  tlie  case  of  the  sale  of  a  39.  Knickerbocker  Ice  Co.  v.  Mont- 

dental  business.  gomery,   7   Pa.   Dist.  R.   463,  21   Pa. 

37.  United  States  Cordage  Co.  v.       Co.  Ct.  R.  409. 

Wall's  Son's  Rope  Co.,  90  Hun    (N.  40.  Hall's  Appeal,  60  Pa.  St.  458, 

Y.),  429,  35  N.  Y.  Supp.  978.  100  Am.  Dec.  584. 

38.  Matthews  v.  Associated  Press  41.    Harkinson's    Appeal,    78    Pa. 
of  State  of  New  York,  136  N.  Y.  333.  St.  196,  203. 

32  N.  E.  981;  Bleisteiu  v.  Associated  42.  Anderson  v.  Rowland,  18  Tex. 

Civ.  App.  460,  44  S.  W.  911. 

70S 


Contracts  in  Resteaint  of  Teade.         §§  469,  469a 

§  469.  Federal  rule. — In  the  Federal  courts,  too,  the  strict  rule 
which  is  recognized  to  have  formerly  existed  in  England  in  rela- 
tion to  the  invalidity  of  contracts  in  restraint  of  trade,43  is  con- 
sidered to  have  been  made  for  a  condition  of  things  and  a  state  of 
society  different  from  those  which  now  prevail  in  this  country, 
and  therefore  requires  to  be  modified  so  that  such  contracts  may 
be  enforced,  if  they  do  not  impose  a  greater  restraint  upon  one 
party  than  protection  to  the  other  requires.44  If  a  contract  in 
restraint  of  trade  is  not  one  which  should  be  held  by  the  court 
unlawful  as  opposed  to  public  policy  equity  may  grant  an  injunc- 
tion to  prevent  a  breach  thereof,  it  being  difficult  to  estimate  the 
damages  in  such  a  case  and  also  because  of  the  multiplicity  of  suits 
likely  to  ensue.45  Thus,  a  contract  relating  to  "  Wistar's  Balsam 
of  Wild  Cherry,"  which  sold  the  recipe  for  preparing  it  and  the 
monopoly  of  it  in  certain  States,  and  which  stipulated  that  it 
should  not  be  sold  below  a  certain  price,  is  not  invalid  as  in  re- 
straint of  trade,  and  should  be  enforced.46 

§  469a.  Decisions;  England;  Canada. — In  England  it  is  de- 
cided that  a  negative  covenant,  in  a  contract  between  an  employer 
and  employee,  that  the  latter  will  not,  during  the  term  of  his 
employment,  engage  in  the  same  line  of  business  with  another, 

43.  Mitchel  v.  Reynolds,  1  P.  Wms.  limited  as  to  the  space  within  which, 
181.  though  unlimited  as  to  the  time  for 

44.  Gibbs  v.  Consolidated  Gas  which  the  restraint  was  to  operate, 
Co.  of  Baltimore,  130  U.  S.  396,  409,  we  are  unable  to  perceive  how  they 
9  S.  Ct.  553,  32  L.  Ed.  979.  could  be  regarded  as  so  unreasonable 

45.  Davis  v.  Booth  Co.,  131  Fed.  as  to  justify  the  court  in  declining 
31,  65  C.  C.  A.  269,  so  holding  in  the  to  enforce  them.  The  vendors  were 
case  of  a  contract,  on  the  sale  of  a  entitled  to  sell  to  the  best  advantage, 
business,  not  to  engage  in  a  similar  and  in  so  doing  to  exercise  the  right 
business  in  certain  localities.  See  to  preclude  themselves  from  entering 
Camors-McConnell  Co.  v.  McConnell,  into  competition  with  those  who  pur- 
140  Fed.  412    (C.  C.  A.).  chased    and    to    prevent    competition 

46.  Fowle  v.  Park,  131  U.  S.  88,  9  between  purchasers;  and  the  purchas- 
S.  Ct.  608,  33  L.  Ed.  67,  per  Fuller,  C.  ers  were  entitled  to  such  protection 
J.-  "Relating,  as  these  contracts  do,  to  as  was  reasonably  necessary  for  their 
a  compound  involving  a  secret  in  its  benefit."  See,  also,  Oregon  Steam 
preparation;  based,  as  they  were,  Nav.  Co.  v.  Winsor,  20  Wall.  64,  68, 
upon   a   valuable   consideration,    and  22  L.  Ed.  315. 

709 


§469a 


CONTBACTS  IN  RESTRAINT   OF   TflADE. 


may  be  enforced  by  an  injunction.47  And  where  a  firm  in  Eng- 
land, for  the  manufacture  and  sale  of  aniline  and  tar  products, 
had  agencies  in  all  parts  of  the  world,  it  was  held  that  a  covenant, 
by  which  an  agent  bound  himself  on  retiring  from  his  agency, 
for  three  consecutive  years  after  such  retirement,  not  to  enter  any 
like  or  similar  business,  nor  give  any  information  about  the  busi- 
ness, was  not  unreasonable  or  void  as  in  restraint  of  trade,  and  that 
its  breach  should  be  enjoined,  though  it  was  unlimited  as  to 
space.48  And  an  agreement  by  a  commercial  traveler  for  a  brewer 
that  he  would  not  be  concerned  within  a  specified  district,  in  sell- 
ing malt  liquors  at  any  time  within  two  years  after  the  end  of  his 
employment  with  the  brewer,  was  enforced  by  injunction.49  In 
Canada  it  is  also  decided  that  an  injunction  will  be  granted  to 
prevent  a  breach  of  an  agreement,  limited  as  to  time  and  territory, 
not  to  engage  in  a  certain  business.50 


47.  Robinson  v.  Heuer,  (C.  A.) 
t1898],  2  Ch.  451,  67  L.  J.  Ch.  N.  S. 
644. 

48.  Badische,  etc.,  Fabrik,  v. 
Scbott  (1892),  3  Ch.  447,  per  Chitty, 
J. :  "  The  reasonableness  depends  on 
all  the  circumstances  which  must  be 
duly  weighed  in  each  case.  If  the  re- 
straint is  greater  than  can  possibly 
be  required  for  the  protection  of  the 
business  of  the  covenantee,  the  cove- 
nant is  unreasonable  and  void.  Ward 
v.  Byrne,  5  M.  &  W.  548,  561.  The 
circumstances  which  may  be  inquired 
into  on  this  question  of  reasonable- 
ness are  those  under  which  the  trade 
is  carried  on  when  the  covenant  is 
entered  into.  The  improvements  in 
the  means  of  communication  which 
have  taken  place  in  recent  times  by 
telegraph,  railroads,  etc.,  are,  I  think, 
within  the  scope  of  the  inquiry,  and. 
bear  particularly  on  the  question  of 
space;  they  are  relevant  more  or  less 
in  proportion  to  the  greater  or  lessor 
area  within  which  the  trade  sought 


to  be  protected  is  carried  on,  and  to 
the  varying  nature  of  the  trade  it- 
self. Such  matters  would  have  little 
or  no  relevancy  if  the  question  re- 
lated to  the  protection  of  a  small  lo- 
cal business,  such  as  that  of  a  village 
baker  or  cobbler,  and  if  the  restraint 
sought  to  be  imposed  on  a  journey- 
man cobbler,  though  limited  as  to 
time,  extended  to  the  whole  of  Eng- 
land, it  would  be  unreasonable  and 
vexatious.  But  they  would  be  rele- 
vant in  reference  to  the  large  trade 
of  a  merchant,  and  a  widely  extended 
news-collecting  agency,  or  to  any 
other  trade  covering  a  great  portion 
of  the  globe.  What  might  in  former 
ages  have  been  considered  an  unrea- 
sonable restriction,  would  not  neces- 
sarily be  so  held  in  the  altered  cir- 
cumstances of  the  present  time." 

49.  Rogers    v.    Haddocks    (1892), 
3  Ch.  346. 

50.  McCausland   v.  Hill,   23   Ont. 
App.  738. 


710 


CONTRACTS   IN    RESTRAINT   OF   TRADE. 


470 


8  470    On  sale  of  good  will.— In  the  absence  of  express  con- 
tract   one  who  sells  the  good  will  of  a  business  is  not  prevented 
from  leasing  premises  which  he  owns  in  the  vicinity  to  another 
person  to  carry  on  the  same  business,  provided  the  lessor  has  no 
interest  in  it.51    The  law  tolerates  and  will  uphold  a  contract  m 
restraint  of  trade,  made  between  a  vendor  and  purchaser  which  is 
intended  to  secure  to  the  purchaser  of  the  good  will  a  guaranty 
against  the  competition  of  the  vendor;  but  such  a  contract  is  not 
to  be  treated  with  special  indulgence,  and  its  scope  «  not  to  be 
extended  by  implication  or  by  a  too  liberal  construction.       Where 
a  person  sells  the  good  will  of  the  trade  of  a  particular  store  in  a 
citv    and  not  the  good  will  of  the  trade  of  the  store  within  the 
limits  of  the  city,  he  cannot  be  restrained,  in  the  absence  of  an 
express  covenant,  from  transacting  the  same  business  m  another 
store  in  the  same  city.53     But  a  trader  who  has  sold  his  business 
and  -ood  will  to  another  for  value,  may  be  restrained  from  solicit- 
ing orders  from  his  old  customers.54    And  in  Massachusetts,  where 


51.  Bradford  v.  Pecliam,  9  R.  I. 
250,  where  there  was  douht  as  to  any 
distinct  agreement  by  the  seller  of  a 
business  not  to  engage  in  the  same 
business  at  or  near  the  same  place, 
it  was  held  that  such  an  agreement 
could  not  be  supplied  by  intendment, 
and  that  defendant  could  not  be  en- 
joined from  carrying  on  the  same 
business  at  the  same  place.  Stephens 
v.  Aulls,  3  Thomp.  &  C.  781;  Welz  v. 
Rhodius,  87  Ind.  1.  See,  also, 
Shackle  v.  Baker,  14  Ves.  468. 

In  case  of  an  express  covenant 
not  to  engage  in  the  same  business, 
a  breach  thereof  may  be  enjoined. 
Swanson  v.  Kirby,  98  Ga.  586,  26  S. 
E.  71.  See  Acker,  Merril  &  Coudet 
Co.  v.  McGaw,  144  Fed.  864. 

52.  Greenfield  v.  Gilman,  140  N. 
Y.  168,  35  N.  E.  435.  In  this  case  it 
was  decided  on  appeal  that  an  agree- 
ment of  a  physician  with  a  purchaser 
of  his  business,  not  to  practice  medi- 
cine  or    surgery,   providing   that   to 


practice  medicine    or    surgery    shall 
mean  to  prescribe  for,  to  compound 
medicine  for,  advise  or  visit  any  sick 
person,  or  to  perform    any    act    re- 
quired  of  a  person  legally  qualified 
to     practice    medicine     or      surgery, 
specifying  $1,500  as  liquidated  dam- 
ages for  a  violation  thereof,  will  be 
held  to  prohibit  merely  the  practice 
of  medicine  and  surgery,  and  not  to 
have  been  violated  by  a   single  visit 
in  consultation    on    a    person  in  ex- 
tremis, when    no    charge  was   made, 
though  a  small  fee  was  paid,  or  by 
prescribing  for  a  few  persons  without 
charge  who  came  to  his  drug  store 
for  medicine. 

53.  Bassett  v.  Percival,  5  Allen 
(Mass.),  345;  Althen  v.  Vreeland 
(N.  J.  Ch.),  30  Atl.  479. 

54.  Atthcn  v.  Vreeland  (N.  J. 
Ch.),  36  Atl.  479;  Ginesi  v.  Cooper, 
L.  R.  14  Ch.  D.  596;  Laboucbere  v. 
Dawson,  L.  R.  13  Eq.  322. 


711 


§471 


Contracts  in  Restraint  of  Trade. 


a  physician  sold  to  another  his  real  estate,  practice  and  good  will 
of  his  business  in  a  specified  town,  it  was  held  he  might  be  enjoined 
from  resuming  practice  as  a  physician  in  the  same  town,  there 
being  an  implied  covenant  that  he  would  not  interfere  with  that 
which  he  had  sold.55  But  where  a  contract  of  sale  provides  that  the 
seller  may  engage  in  the  same  business  at  his  option,  he  will  not 
be  enjoined  from  soliciting  the  customers  of  the  old  firm.56 

§  471.  As  to  unique  manufactures. — An  injunction  will  lie  to 
restrain  the  violation  of  a  contract  to  manufacture  for  plaintiff, 
and  for  no  one  else,  an  article  of  furniture  made  according  to  a 
special  and  unique  design  furnished  by  the  plaintiff,  since  such  a 
contract  is  not  against  public  policy,  and  there  is  no  adequate 
remedy  at  law.57 


55.  Dwight  v.  Hamilton,  113 
Mass.  175,  per  Endicott,  J.:  "The 
sale  of  the  practice  and  good  will  of 
a  physician  within  certain  limits,  is 
the  legitimate  subject  matter  of  a 
contract,  and  carries  with  it  the  im- 
plied covenant,  as  in  other  sales,  that 
the  vendor  will  not  himself  do  any- 
thing to  disturb  or  injure  the  vendee 
in  the  enjoyment  of  that  which  he 
has  purchased.  This  case  resembles 
Angier  v.  Webber,  14  Allen,  211, 
where  the  interest  and  good  will  of 
a  teamster's  business  between  Bos- 
ton and  Somerville  were  sold.  As  in 
this  case,  certain  limits  were  desig- 
nated. There  was  no  express  cove- 
nant that  the  defendant  would  not 
enter  into  the  same  business  on  the 
same  route,  but  simply  a  covenant  he 
would  not  do  anything  to  impair  the 
business  he  had  sold.  But  such  cove- 
nant only  expressed  what  otherwise 
would  have  been  implied.  Here  the 
defendant,  within  three  months  of 
the  sale,  returned  to  Douglas,  opened 


an  office  in  the  next  house  but  one 
from  his  former  office,  and  recom- 
menced the  practice  which,  with  its 
good  will,  he  had  sold  to  plaintiff. 
For  such  breach  the  plaintiff  may 
have  an  action  at  law  or  a  more  com- 
plete remedy  in  equity  by  injunction, 
and  so  compel  the  defendant  to  the 
performance  of  his  agreement.  En- 
sign v.  Kellogg,  4  Pick.  1;  Fox  v. 
Scard,  33  Beav.  327;  Howard  v. 
Woodward,  10  Jur.   (N.  S.)    1123." 

56.  Pearson  v.  Pearson,  L.  R.  27 
Ch.  D.  145. 

57.  Lowenbein  v.  Fuldner,  2  Misc. 
176,  21  N.  Y.  Supp.  615.  In  Saltus 
v.  Bel  ford  Co.,  133  N.  Y.  499,  31  N. 
E.  518,  a  publisher  was  enjoined 
from  violating  his  contract  with  an 
author  while  acting  under  the  li- 
cense which  the  contract  afforded 
him;  the  court  distinguished  Hyatt 
v.  Ingalls,  124  N.  Y.  93,  26  N.  E. 
285,  as  a  case  in  which  the  injunc- 
tion was  stricken  out  by  the  decree 
which  ended  the  license. 


712 


CONTEACTS  IN    RESTRAINT   OF   TeADE.  §§  472,  472a 

§  472.  Divisible  contracts  restraining  trade. — A  contract  in 
restraint  of  trade  may  be  divisible  as  to  place,  being  valid  within 
certain  limits  and  invalid  beyond  those  limits.  Thus  where  one 
agreed  not  thereafter  to  engage  in  the  business  of  manufacturing 
ochre  "  in  the  county  of  Lehigh,  or  elsewhere,"  it  was  held  that 
while  the  contract  was  void  outside  of  Lehigh  county,  it  was  good 
within  the  county,  and  that  he  could  be  enjoined  from  manufac- 
turing ochre  within  the  county.58 

§  472a.  Adequacy  of  consideration  not  material. — Courts  will 
generally  uphold  contracts  where,  as  a  matter  of  fact,  there  is  some 
legal  consideration,  and  in  a  proceeding  by  a  party  to  enjoin  the 
breach  of  a  contract  in  restraint  of  trade  adequacy  of  the  con- 
sideration does  not  determine  the  right  to  the  injunction.59  In  this 
connection  it  has  been  decided  that  the  purchase  by  an  individual 
of  a  stockholder's  interest  in  a  corporation  affords  a  sufficient  con- 
sideration for  a  contemporaneous  agreement  by  the  seller  not  to 
engage  in  the  business  carried  on  by  the  corporation.60  And  the 
purchase  of  the  stock  in  trade  of  a  party  is  a  sufficient  considera- 
tion for  that  party's  agreement  to  abstain  from  carrying  on  the 
particular  trade  in  the  place  where  the  purchaser  is  to  engage  in 
it.61  In  a  case  in  Indiana,  however,  it  is  decided  that  a  court  of 
equity  may  decline  to  interfere  where  the  disproportion  between 

58.  Smith's  Appeal,    113    Pa.    St.  term   of  five   years."      The   contract 

579,  6  Atl.  251.     In  Price  v.  Green,  was  held  to  be  divisible,  and  reason- 

16  Mees.  &  W.  346,  the  contract  was  able  and  valid  as  to  the  city  of  St. 

that  defendant    was    not  to  exercise  Louis.      See   Presbury   v.    Fisher,    18 

the  trade  of  a  performer  in  London,  Mo.  50;  Thomas  v.  Miles,  3  Ohio  St. 

or  within  six  hundred  miles  thereof;  274. 

it  was   held   divisible,   and   good   for  59.  Ryan  v.  Hamilton,  205  111.  191, 

London  only.    In  Oregon  Steam  Nav.  68  N.  E.  781 ;   Beatty  v.  Cable,   142 

Co.    v.     Winsor,    20    Wall.     70,    22  Ind.    329,    41    N.    E.    590;    Eisel    v. 

L.      Ed.      315,      the      contract      in  Hayes,    141   Ind.   41,  40   N.   E.    119; 

question    was    held    to    be   divisible,  Guerand   v.    Daudelet,    32   Md.    561; 

and     was     enforced     in     part.       In  McClurg's  Appeal.  58  Pa.  St.  51. 

Peltz  v   Eichele,  62  Mo.  171,  the  de-  60.  Up    River   Ice    Co.    v.    Denier, 

fendant  covenanted    on    sale    of   his  114  Mich.  296,  72  N.  W.  157. 

match  factory  "not  to  enter  into  the  61.  Eisel   v.   Hayes,    141   Ind.   41, 

manufacture  of  matches  at  this    (St.  40  N.  E.  119. 
Louis),  or  any  other  place,  for  the 

713 


§  473  Contracts  in  Restraint  of  Trade. 

the  consideration  and  the  restriction  is  such  as  to  make  the  agree- 
ment hard  and  oppressive.62 

§  473.  Parol  restrictive  agreements. — A  parol  agreement  in 
restraint  of  trade,  made  in  consideration  of  another  distinct 
written  contract  between  the  same  parties,  may  be  enforced  by 
injunction.  This  rule  was  applied  where  the  lessor  of  a  hotel,  at 
the  time  of  executing  a  written  lease  thereof,  made  a  parol  agree- 
ment not  to  keep  a  hotel  in  the  same  city  during  the  term  of  the 
lease.63  Thus  where  one  sells  the  lease  of  a  house  and  the  good 
will  of  the  business  carried  on  there,  he  may  be  enjoined  from 
violating  a  mere  oral  agreement  not  to  resume  the  business  in  the 
same  street.64  And  a  parol  agreement  not  to  engage  in  trade  at  a 
particular  place  is  not  void,  because  unwritten,  under  the  pro- 
vision of  the  statute  of  frauds,  which  requires  agreements  "  not 
to  be  performed  within  one  year  from  the  making  thereof  to  be 
in  writing,"  65  because  such  an  agreement  being  only  a  personal 
engagement  to  forbear  doing  certain  acts,  not  stipulating  for  any- 
thing beyond  the  promisor's  life,  and  imposing  no  obligation  on 
his  personal  representatives,  would  be  fully  performed  if  he  died 
within  the  year.66  And  the  owner  of  land  may,  by  parol  contract 
with  the  purchasers  of  successive  parcels  of  it,  affect  the  remain- 
ing parcels  with  an  equity  which  is  binding  upon  a  subsequent 
purchaser  of  one  of  them,  with  notice  of  the  fact,  though  his  legal 
title  be  absolute  and  unrestricted.67 

62.  Thayer  v.  Younge,  86  Ind.  259.  forms  no  part  of  it;  but  stands  on  its 

63.  Welz  v.  Rhodius,  87  Ind.  1.  own  terms,  to-vvit:  it  is  a  contract 
In  Spier  v.  Lambdin,  45  Ga.  319,  for  which  the  other  contract  is  the 
plaintiff  was  induced  to  buy  from  consideration."  See,  also,  Mell  v. 
defendant    the    lease   of   an    academy  Mooi-.ey.  30  Ga.  413. 

by   parol     inducements,    that    if   de-  64.  Harrison  v.  Gardner.  2  Madd. 

fendant    could    sell    he    would    quit  198. 

teaching  in  the  locality.     In  uphold-  65.  Doyle  v.  Dixon.  97  Mass.  208. 

ing  the  injunction  against  defendant,  66.  Worthy    v.    Jones,     11    Gray, 

McCay,   J.,   said:      "If  this  was  an  168;  Lyon  v.  King,  11  Met.  411.  And 

independent  contract,  for  which  the  see  Peters  v.   Westborough,   19  Pick. 

agreement   to  buy  the  lease  was  the  364;   Hill  v.  Jamieson,   16  Ind.   125; 

consideration,  then  it  may  be  proved  Wiggins  v.  Keizer,  6  Ind.  252. 

by    parol,    though    the   lease-contract  67.  Tallmadge  v.  East  River  Bank, 

was   reduced     to    writing;     since    it  26  N.  Y.  105. 

714 


Contbacts  in  Restraint  of  Tkade.        §§  473a,  473b 

§  473a.  What  constitutes  violation. — Where  a  party,  under  an 
agreement  not  to  carry  on  a  specified  business,  under  color  of 
another  name  engages  in  a  business  which  is  within  the  spirit  of 
the  agreement,  he  will  be  restrained  from  continuing  it.68  And  in 
case  of  an  agreement  not  to  engage  in  a  certain  business  or  to  aid, 
encourage,  or  advise  others  to  do  so,  an  injunction  may  be  granted 
restraining  the  party  to  the  contract  from  giving,  and  another 
from  receiving,  such  aid.69  But  it  has  been  decided  that  a  cove- 
nant on  the  sale  of  a  business  and  good  will,  not  to  engage  in  the 
same  business,  does  not  bind  the  covenantor's  wife  or  prevent  her 
from  using  her  own  name  in  a  similar  business  established  by  her, 
though  such  use  injures  the  good  will  of  the  purchaser  of  the 
husband's  business.70  And  it  is  held  that  in  case  of  a  contract  by 
a  wife,  not  to  engage  in  a  certain  business,  it  will  not  operate  to 
prevent  the  husband  from  engaging  in  such  business,  and  he  will 
not  be  enjoined  from  so  doing  where  it  does  not  appear  that  his 
name  is  used  as  a  cover  to  conceal  the  interest  of  the  wife.71 

§  473b.  Agreements;  dissolution  of  partnership. — Where  part- 
ners dissolve  partnership  and  one  of  them  sells  out  his  interest  to 
the  other  or  others  and  agrees  not  to  engage  in  the  same  business 
in  the  same  locality,  an  injunction  will  be  granted  to  restrain  him 
from  a  violation  of  such  agreement.'2  So  a  covenant  in  partnership 
articles,  prohibiting  either  partner  from  continuing  in  any  busi- 
ness within  one  block  of  the  premises  occupied  by  the  firm,  for  a 
limited  period  after  its  dissolution  is  held  to  be  enforceable  by 
injunction.73  And  though  in  such  a  contract  between  parties  a 
sum  is  named  as  liquidated  damages,  the  naming  of  such  sum  does 
not  of  itself  conclusively  establish  that  the  parties  contemplated  to 

68.  Richardson  v.  Peacock,  26  N.  71.  Emmert  v.  Richardson,  44 
J.  Eq.   40;    Booth  &  Co.  v.  Seibold,       Kan.  268,  24  Pac.  480. 

37   Misc.  R.    (N.  Y.)    101,  74  N.  Y.  72.  Watson  v.  Ross..   46  111.   App. 

Supp.   776.  188;     Augier    v.    Webber,    14    Allen 

69.  Baker   v.    Pottmeyer,    75    Ind.        (Mass.),  211. 

451.  73.  Shearman    v.    Hart,    14    Abb. 

70.  Fleckenstein  Bros.  Co.  v.  Prac.  (N.  Y.)  358;  Butler  v.  Burle- 
Fleckenstein,    66   N.   J.   Eq.   252,    57       son,  16  Vt.  176. 

Atl.  1025. 

715 


§§  473c,  473d,  473e        Contracts  in  Restraint  of  Trade. 

do  the  act  upon  the  payment  of  the  compensation,  and  make  an 
alternative  agreement  for  the  benefit  of  the  party  who  has  done 
what  he  had  agreed  not  to  do.74  The  fact,  however,  that  a  partner 
who  has  sold  out  his  interest  to  the  remaining  partner  or  partners 
loans  money  to  a  competitor  does  not  constitute  a  breach  of  an 
agreement  not  to  directly  or  indirectly  engage  in  the  same  busi- 
ness.'5 

§  473c.  Injunction  against  third  party. — Where  one  has  sold  a 
business  and  covenanted  not  to  engage  in  the  same  business  him- 
self or  to  act  therein  as:  agent  or  servant,  one  who  is  a  stranger 
to  the  contract  and  who  establishes  a  similar  business  under  the 
name  of  the  wife  of  the  covenantor  will  be  enjoined,  at  the  instance 
of  the  purchaser  of  the  business  of  the  covenantor,  from  causing 
the  latter  to  violate  his  contract  by  employing  him.76 

§  473d.  Agreement  not  to  use  name. — Where  a  person  estab- 
lishes and  conducts  a  business  under  a  certain  name  and  upon  a 
sale  of  the  business  agrees  to  give  the  purchaser  the  use  of  such 
name  and  not  to  use  it  himself  in  a  rival  business,  he  will  be 
enjoined  from  violating  his  agreement.77 

§  47  3e.  Effect  of  provision  for  liquidated  damages. — A  pro- 
vision for  liquidated  damages  in  a  contract  in  which  the  seller  of 
a  business  agrees  not  to  engage  in  such  business  in  a  certain  town, 
does  not  oust  the  jurisdiction  of  a  court  of  chancery  to  enjoin  a 
breach  of  such  contract.78  So  in  a  case  in  Pennsylvania  in  which 
it  appeared  that  a  physician  who  had  sold  his  practice  had  bound 
himself  in  a  "  penal  sum  "  of  a  certain  amount  not  to  practice  in 
that  locality  for  ten  years,  it  was  decided  that  the  sum  named  was 
a  penalty  and  that  as  there  was  an  utter  uncertainty  in  any  calcu- 

74.  Ropes  v.  Upton,  125  Mass.  258.  77.  Grow   v.    Seligman,    47    Mich. 

75.  Salzman  v.  Siegelman,  102  607,  11  N.  W.  404,  41  Am.  Rep.  737. 
App.  Div.  (N.  Y.)  406,  92  N.  Y.  In  this  case  the  business  was  estab- 
Supp.  844.  Hshed  in  the  name  of  "  Little  Jake." 

76.  Fleckenstein  Bros.  v.  Fleck-  78.  Harris  v.  Theus  (Ala.  1907). 
enstein,  66  N.  J.  Eq.  252,  57  Atl.  43  So.  131,  10  L.  R.  A.  (N.  S.)  204; 
1025-  McCurry  v.  Gibson,  108  Ala.  451,  18 

716 


CONTKACTS    IN    RESTRAINT    OF    TRADE.  §  4:73e 

lation  of  damages  from  the  breach  of  the  covenant,  and  the  measure 
of  damages  was  largely  conjectural,  equity  would  intervene,  be- 
cause of  the  inadequacy  of  the  remedy  at  law,  by  an  injunction 
enforcing  performance  of  the  agreement.79  And  a  similar  con- 
clusion is  reached  in  a  case  of  this  kind  in  Alabama.80  But  in 
Indiana  it  is  decided  that  where  the  parties  to  a  contract  m  re- 
straint of  trade  have  agreed  upon  the  damages  which  may  be 
recovered  for  a  breach  thereof,  the  remedy  is  for  the  recovery  oi 
the  sum  thus  fixed,  and  an  injunction  will  not  lie.81  And  m  a 
case  in  Connecticut  where  it  appeared  that  the  defendant  had 
agreed  with  the  plaintiff  not  to  practice  dentistry  for  ten  years 
within  a  certain  distance  of  a  city,  but  with  a  provision  that  he 
might  do  so  on  paying  the  plaintiff  one  thousand  dollars,  it  was 
decided  that  a  court  of  equity  would  not  grant  an  injunction 
against  the  defendant's  practice  of  dentistry  within  that  limit,  but 
would  leave  the  plaintiff  to  his  action  at  law  for  the  recovery  of 
the  thousand  dollars  even  though  the  defendant  was  insolvent 

It  would  seem,  however,  in  this  case  that,  especially  in  view  oi 
the  wording  of  the  provision,  the  proper  procedure  would  have 
been  to  have  enjoined  the  defendant  from  practicing  until  the 
pavment  of  the  sum  provided  for.  And  authority  for  such  pro- 
cedure is  to  be  found  in  a  case  in  New  York  in  which  it  is  declared 
that  even  if  the  remedy  were  to  be  limited  to  the  sum  provided  as 
damages  in  a  contract  in  restraint  of  trade,  equity  would  probably 
take  cognizance  to  the  extent  of  enjoining  the  defendant,  if  unable 
to  respond  in  damages,  from  prosecuting  the  business  which  con- 
stituted the  breach  until  the  damages  should  be  paid. 

So.    806;    Knickerbocker    Ice    Co.    v.  follows:      -It    fa    further  mutually 

Mont.oTr.ery.  7  Pa.  Dist.  R.  463.  21  understood    and    agreed    by    and    be- 

p      Y  r/R    409  tween    the    parties    hereto    that    the 

79  Wilkinson  v.   Colley,   164  Pa.  said    Doebler may   be    at   liberty Jo 
St    35    30  Atl.  286,  26  L.  R.  A.  114.  practice    dentistry   in   said   Hartford 

80  McCurry  v.   Gibson,   108  Ala.  at  any  time  after  the  termination  of 
.*?   io  «„    «nfi  tllis  contract,  oy  the  paying  to  said 

g'l    Martin    v.    Murphy,    129    Ind.  Dills    of   one    thousand    dollars,    and 

AM    28 N.  E.  1118.  giving    such    bond    as    «    hereinbe- 

82    Dills  v.  Doebler,  62  Conn.  366,  fore   alluded    to   in   reference   to   the 

26  Ail    398,  36  Am.  St.  Rep.  345,  20  term  'Associate  Dentists  . 

-da    aw  83    Zimmerman  v.  Gerzog  13  App. 

5.  elau«  in  the  contract  wa,  as  Div.  (N.  Y.)  210,  43  N.  Y.  Snpp.  339. 

717 


§§  473f,  473g,  473h       Contracts  in  Restraint  of  Trade. 

§  473f.  Power  of  court  to  award  damages. — In  an  equitable 
action,  upon  the  establishment  of  plaintiff's  right  to  have  the 
defendant  restrained  from  violating  his  agreement  not  to  engage 
in  a  certain  business,  the  court  may,  in  order  to  do  complete  justice 
in  the  matter,  and  render  unnecessary  a  resort  to  an  action  at  law, 
award  damages  on  account  of  a  violation  of  said  agreement  during 
the  litigation.84 

§  473g.  Time  of  bringing  action  to  enjoin. — Where  the  seller 
of  a  business  makes  a  valid  covenant  not  to  engage  in  a  certain 
business,  the  covenantee  need  not  wait  until  the  covenantor  has 
actually  commenced  the  carrying  on  of  the  business  before  bring- 
ing an  action  to  enjoin  the  breach,  but  it  is  sufficient  to  authorize 
a  court  of  equity  to  act  where  the  allegations  show  a  present  pur- 
pose to  begin  the  operation  of  the  business.85 

§  473h.  Sufficiency  of  complaint. — In  an  action  by  the  pur- 
chaser of  an  interest  in  a  business  to  restrain  the.  vendor  from 
violating  an  agreement  not  to  engage  in  the  same  kind  of  business 
in  the  same  city  a  complaint  alleging  that,  contrary  to  such  agree- 
ment, the  vendor  has  engaged  in  such  business  by  associating  him- 
self with  others  therein,  and  that  the  inevitable  result  of  such  con- 
nection, if  it  be  permitted  to  continue,  will  be  a  large  diminution 
in  the  value  of  the  good  will  of  the  business  purchased  by  plaintiff, 
sufficiently  alleges  that  the  restraint  prayed  for  is  necessary  to  the 
protection  of  plaintiff's  business.86 

84.  My  Laundry  Co.  v.  Schmeling,  43  So.  131.  10  L.  R.  A.  (N.  S.)  204. 
129  Wis.  597.   109  N.  W.  540.  86.  My  Laundry  Co.  v.  Schmeling, 

85.  Harris  v.  Theus    (Ala.  1907),       129  Wis.  597,  109  N.  W.  540. 


718 


Relating  to  Restrictive  Covenants.  §  474 


CHAPTER  XV. 

Relating  to  Restrictive  Covenants. 

Section  474.  Enforcing  restrictive  covenants  by  injunction — Change  of  locus. 

475.  Though  covenant  does  not  run  with  land. 

476.  Form  of  covenant  not  essential. 

477.  Though  covenant  not  in  writing. 

478.  How  statute  of  frauds  affects  oral  covenants. 

479.  As  between  successors  to  title. 

480.  Restrictions  as  to  buildings — Though  no  damage. 

481.  Covenant  against  tenement  houses — Dwellings  only. 
481a.  Restrictions  as  to  use  of  premises. 

482.  Covenant  not  to  sell  liquors. 

483.  Enjoining  vendor  from  breach  of  covenants. 
483a.  Same  subject — Tract  of  land  divided  into  lots. 

484.  Lessees'  covenants. 

485.  Same  subject. 

486.  Sub-lessees. 

487.  Enjoining  lessor  from  breach  of  covenants. 

488.  Waiver  of  right  to  enjoin  breach — Acquiescence. 

488a.  Same  subject — Where  complainant  has  violated  restriction. 

489.  Vague  and  uncertain  general  covenants. 
489a.  Need  not  be  substantial  injury. 

490.  Present  and  reversionary  interests. 

491.  Penalty  and  liquidated  damages. 

492.  Same  subject  illustrated. 

493.  Same  subject — Construction  of  covenant. 

Section  474.  Enforcing  restrictive  covenants  by  injunction; 
change  of  locus. — Where  the  owner  of  lands  in  a  city  has  laid  it 
out  into  lots  and  conveyed  them  to  different  purchasers),  each 
conveyance  containing  covenants  on  the  part  of  the  grantee  run- 
ning with  the  land,  restricting  the  use  thereof  to  the  purposes  of 
a  private  residence,  and  prohibiting  thereon  the  erection  of  cer- 
tain specified  structures,  a  court  of  equity  has  power  by  injunction 
to  enforce  these  negative  covenants,  but  the  power  is  discretionary, 
,and  where  there  has  been  such  a  change  in  the  neighborhood  as 
to  defeat  the  object  of  the  covenant  and  to  render  it  inequitable  to 
deprive  a  grantee  or  his  successors  in  title  of  the  privilege  of 
conforming  his  property  to  the  character  of  such  change,  injunc- 

719 


§  474  Kelating  to  Eestrictive  Covenants. 

tive  relief  will  not  be  granted,  but  in  lieu  thereof  damages  may 
be  allowed.1  Though  the  covenant  was  fair  and  just  when  made, 
yet  a  court  of  equity  should  refuse  to  enforce  it  by  injunction  if 
subsequent  events  have  made  performance  so  onerous  that  its 
enforcement  would  cause  great  hardship  to  him  and  little  or  no 
benefit  to  plaintiff.3  So  it  is  decided  in  a  recent  case  that  where 
the  change  in  the  condition  of  the  surrounding  property  is  such 
that  a  performance  of  the  covenant  in  the  deed  would  injure  the 
grantee's  property,  or  make  it  yield  less  profit,  or  make  it  incap- 
able of  yielding  any  profit,  the  covenant  will  not  be  enforced  as 
being  unreasonable  and  oppressive.4  So  where  the  purpose  of  a 
restriction  is  to  make  a  locality  a  suitable  one  for  residences  and 
owing  to  the  growth  of  a  city  and  the  use  of  the  neighborhood  for 
business  the  purpose  can  be  no  longer  accomplished,  equity  will 
not  interfere  by  injunction  to  enjoin  a  breach.5  So  a  change  in  the 
character  of  a  neighborhood  from  a  residential  to  a  business 
locality  after  the  signing  of  an  instrument  as  to  the  erection  of 
buildings  within  a  certain  distance  from  the  front  of  lots  has  been 
held  to  be  a  sufficient  reason  for  refusing  an  injunction  to  enforce 
the  covenant.6        But  where  the  owner  of  a  parcel  of  land  con- 

1.  Amerman  v.  Deane,  132  N.  Y.  law."  Star  Brewery  Co.  v.  Primas, 
355,  30  N.  E.  741.  The  rule  laid  163  111.  652,  45  N.  E.  145.  Per  Ma- 
down  in  the  text  was  applied  and  an  gruder,  J.  See,  also,  Trustees  of 
injunction  refused,  to  prevent  the  Columbia  College  v.  Thacher,  87  N. 
breach  of  a  covenant  not  to  carry  on  Y.  311,  41  Am.  Rep.  365. 
any  trade  or  business  where  the  3.  Trustees  of  Columbia  College 
character  of  the  locus  in  quo  had  v.  Thacher,  87  N.  Y.  311,  41 
been  wholly  changed  by  the  construe-  Am.     Rep.     365;     Clarke     v.     Roch- 

tion  of  an  elevated  road.  ester,    etc.,    R.    Co.,     18    Barb.     (N. 

"  It  is  as  a  general  thing,  where  Y.)    350;    Davis   v.   Hone,   2   Sch.   & 

the  acts  of  the  grantor,  or  those  de-  Lef.   340;    Baily  v.   DeCrespigny,   L. 

riving  title  under  him,  have  altered  the  E.  4  Q.  B.   180;    Duncan  v.   Central 

character   and    condition   of    the   ad-  Passenger  B.  Co..  85  Ky.  525,  4  S. 

joining  lands  so  as  to  make  the  re-  W.  228. 

striclion  of  the  covenant  inapplicable  4.  Star  Brewery    Co.    v.    Primas, 

according  to  the  intent  and  spirit  of  163  111.  652,  45  N.  E.  145. 

the    contract,   that   courts   of   equity  5.  Jackson  v.  Stevenson,  156  Mass. 

refuse  to  interfere  by  injunction  to  496,  31  N.  E.  691,  32  Am.  St.  Rep. 

prevent  a  breach  of  the  covenant,  and  476. 

leave  the  parties  to  their  remedy  at  6.  Schefer    v.    Ball,    53    Misc.  R. 

720 


.Relating  to  Restrictive  Covenants. 


§475 


veyed  portions  of  it  to  various  persons  with  covenants  prohibiting, 
inter  alia,  the  erection  of  stables  thereon,  and  afterwards  conveyed 
the  residue  of  the  parcel  to  defendant's  grantor,  subject  to  the  same 
restrictive  covenants,  it  was  held  that  the  covenants  in  the  last 
deed  were  for  the  benefit  of  the  prior  vendees,  and  that  defendant 
could  be  enjoined  from  erecting  a  stable  on  the  land  conveyed  to 
him.7  Where,  however,  it  appeared  in  such  a  case  that  defendant's 
stable  had  been  completed,  and  that  the  building  on  plaintiff's 
lot  was  an  apartment  house  and  not  his  home,  it  was  decided  that 
the  injunction  would  be  vacated  on  the  defendant's  paying  the 
damages  caused  to  plaintiff's  property.8 


§  475.  Though  covenant  does  not  run  with  land. — Where  a 

grantee  binds  himself  by  a  covenant  in  the  deed  to  him,  limiting 


(N.  Y.)  448,  104  N.  Y.  Supp.  1028; 
Adams  v.  Howell,  108  N.  Y.  Supp. 
945. 

7.  Equitable  Life  Ass.  Society  v. 
Brennan,  24  N.  Y.  Supp.  784.  In 
Trustees  v.  Lynch,  70  N.  Y.  440,  447, 
Allen,  J.,  said:  "An  easement  in 
favor  of  and  for  the  benefit  of  lands 
owned  by  third  persons  can  be  created 
by  grant,  and  a  covenant  by  the 
owner  upon  a  good  consideration,  to 
use,  or  to  refrain  from  using,  his 
premises  in  a  particular  manner,  for 
the  benefit  of  premises  owned  by  the 
covenantor,  is,  in  effect,  the  grant  of 
an  easement,  and  the  right  to  the 
enjoyment  of  it  will  pass  as  appur- 
tenant to  the  premises,  in  respect  of 
which  it  was  created.  Reciprocal 
easements  of  this  character  may  be 
created  upon  the  division  and  con- 
veyances in  severalty  to  different 
grantees  of  an  entire  tract,  and  they 
may  be  created  by  a  reservation  in  a 
conveyance,  by  a  condition  annexed  to 
a  grant,  or  of  a  covenant,  and  even 
a  parol  agreement  of  the  grantees. 
Curtiss  v.  Ayrault,  47  N.  Y.  73;  Tall- 


madge  v.  Bank,  26  N.  Y.  105;  Gibert 
v.     Peteler,     38     Barb.     488,     aff'd 
38    N.     Y.     165."      See,     also,     Post 
v.     Weil,     115     N.    Y.     361,    23    N. 
E.    145.         See,    also,    on    the    same 
point  the  leading  New  York  case  of 
Barrow  v.  Richard,  8  Paige,  351,  or 
Barron  v.   Richard,   3   Edw.   Ch.   96; 
Brouwer    v.    Jones,    23    Barb.     153; 
Raynor  v.  Lyon,  46  Hun,  227;   Lat- 
timer   v.   Livermore,   72   N.   Y.    174 
Clark    v.    Martin,    49    Pa.    St.    289 
Thruston    v.    Minke,    32    Md.    487 
Greene     v.     Creighton,    7    R.    I.    1 
Parker  v.  Nightingale,  6  Allen,  341 
Catt  v.  Tourle,  L.  R.  4  Ch.  App.  654 
Whitney  v.   Railroad   Co.,    11    Gray, 
359. 

8.  Equitable  Life  Ass.  Society  v. 
Brennan,  24  N.  Y.  Supp.  784.  See 
also  on  this  point  Madison  Ave.,  etc., 
Church  v.  Baptist  Church,  73  N.  Y. 
82,  85;  Willard  v.  Tayloe,  8  Wall. 
557,  19  L.  Ed.  501;  Amerman  v. 
Deane,  132  N.  Y.  355,  30  N.  E.  741 ; 
Peppenheim  v.  Metropolitan  El.  Ry. 
Co.,  128  N.  Y.  436,  444,  28  N.  E. 
518.    See,  also,  §  11,  ante. 


721 


46 


§  476  Relating  to  Restrictive  Covenants. 

the  use  of  the  land  purchased  in  a  particular  manner  so  as  not  to 
interfere  with  the  trade  or  business  of  the  grantor,  and  the  cove- 
nant is  valid  as  between  the  parries,  it  may  also  be  enforced  against 
a  grantee  of  the  covenantor  taking  title  with  notice  of  the  restric- 
tion, even  though  the  covenant  be  not  one  technically  running  with 
the  land  f  and  though  the  assignees  of  the  covenantor  be  not  named 
or  referred  to  in  the  deed.10  Where  a  covenant  concerns  land  and 
is  capable  of  being  annexed  to  the  estate,  and  it  appears  by  the 
instrument  that  such  was  the  intention  of  the  parties,  it  is  to  be 
construed  as1  running  with  and  charging  the  land  into  whatever 
hands  the  title  to  it  may  devolve.11 

§  476.  Form  of  covenant  not  essential. — The  rule  uniformly 
followed  in  New  Jersey  is  that  where  a  grantor  retaining  a  por- 
tion of  thei  land  out  of  which  the  grant  is  made,  enters  into  an 
express  written  understanding  with  his  gcantee,  whatever  may  be 
its  form,  whether  covenant,  condition,  reservation  or  exception, 
which  restricts  the  enjoyment  of  the  portion  of  the  land  which  is 
conveyed  in  order  to  benefit  the  portion  retained,  if  the 
restriction  is  reasonable  and  consonant  with  public  policy,  whether 
it  runs  with  the  land  and  is  binding  at  law  or  not,  it  will  be 
enforced  in  equity  against  the  grantee  and  any  one  subsequently 

0.  Hodge  v.  Sloan,  107  N.  Y.  244,  Either    a    mandatory    or    pro- 

17  N.  E.  335,  per  Danforth,  J.:     "In  hibitory   injunction   may   be    issued 

order  to  uphold  the  liability  of  the  against   a   purchaser   with    notice   of 

successor  in  title  it  is  not  necessary  the    covenant.       Cumberland    Valley 

that  the  covenant  should  be  one  tech-  R.  Co.  v.  Gettysburg  &  II.  R.  Co.,  177 

nically   attaching  to   and   concerning  Pa.  St.  519,  35  Atl.  952. 

the  land    and    so    running  with  the  10.  Morland  v.  Cook,  L.  R.  6  Eq. 

title.  It  is  enough  that  the  purchaser  252. 

has  notice  of  it" — citing  Tulk  v.  11.  Mott  v.  Oppenheimer,  135  N. 
Moxhay,  11  Beav.  571;  Tallmadge  v.  Y.  312,  31  N.  E.  1097,  where  a  cove- 
East  Riv.  Bank,  26  N.  Y.  105;  Trus-  nant  in  respect  to  payment  of  party 
tees  v.  Lynch,  70  N.  Y.  440;  Carter  wall  was  made  to  run  with  the  land 
v.  Williams,  L.  R.  9  Eq.  678;  Parker  by  force  of  its  express  terms.  In 
v.  Nightingale,  6  Allen  (Mass.),  341;  Hart  v.  Lyon,  90  N.  Y.  663,  the  con- 
Burbank  v.  Pillsbury,  48  N.  H.  475;  tract  for  the  party  wall  was  held  not 
Brown  v.  Great  East.  R.  Co.,  L.  R.  to  be  enforceable  against  a  purchaser 
2  Q.  B.  D.  406;  London,  etc.,  R.  Co.  at  a  sale  in  foreclosure  as  being 
v.  Gomm,  L.  R.  20  Ch.  D.  562.  merely  a  personal  obligation ;  but  the 

722 


Relating  to  Restrictive  Covenants. 


§476 


acquiring  title  to  the  land  with  notice  of  it,  at  the  instance  of  the 
grantor,  or  of  the  subsequent  owner  or  owners  of  parts  of  the 
remaining  land,  when  its  violation  results  in  material  detriment  to 
the  portion  of  the  remaining  land  which  the  complainant  in  the 
suit  for  its  enforcement  holds.  And  where  such  express  under- 
standing is  incorporated  in  a  deed  which  constitutes  a  muniment 
of  title  to  the  land,  the  law  conclusively  charges  each  subsequent 
holder  of  the  title  with  notice  of  it.12    And  in  a  case  in  New  York 


covenant  that  the  expense  of  repair- 
ing or  rebuilding  the  party  wall 
should  be  borne  equally  by  the  par- 
ties, their  heirs  and  assigns,  was  re- 
garded as  a  covenant  running  with 
the  land.  Compare,  also,  Scott  v. 
McMillan,  76  N.  Y.  144;  Cole  v. 
Hughes,  54  N.  Y.  444.  And  see  Se- 
ball  v.  Mulholland,  26  N.  Y.  Supp. 
913. 

12.  Ilayes  v.  Waverly  &  P.  R.  Co., 
51  N.  J.  Eq.  345,  27  Atl.  648;  Brewer 
v.  Marshall,  19  N.  J.  Eq.  537;  Van 
Doren  v.  Robinson,  16  N.  J.  Eq.  256; 
Kirkpatrick  v.  Peshine,  24  N.  J.  Eq. 
206;  Gawtry  v.  Leland,  31  N.  J.  Eq. 
385;  Pope  v.  Bell,  35  N.  J.  Eq.  1; 
Coudert  v.  Sayre,  46  N.  J.  Eq.  386, 
19  Atl.  190;  De  Gray  v.  Monmouth 
Beach  C.  H.  Co.,  50  N.  J.  Eq.  329, 
24  Atl.  388.  In  Hayes  v.  Waverly  P. 
R.  Co.,  supra,  McGill,  Ch.,  said: 
"The  principle  upon  which  jurisdic- 
tion in  such  cases  is  assumed  clearly 
appears  in  the  following  extract 
from  the  opinion  of  Lord  Cottenham 
in  Tulk  v.  Moxhay,  2  Phil.  Ch.  774, 
the  leading  case  upon  this  subject: 
'That  this  court  has  jurisdiction  to 
enforce  a  contract  between  the  owner 
of  land  and  his  neighbor  purchasing 
a  part  of  it,  that  the  latter  shall 
either  use  or  abstain  from  using  the 
land  purchased  in  a  particular  way, 
is  what  I  never  knew  disputed.  Here 
there  is  no  question  about  the  con- 


tract. The  owner  of  certain  houses 
in  the  square  sells  the  land  adjoin- 
ing, with  a  covenant  from  the  pur- 
chaser not  to  use  it  for  any  other 
purpose  than  as  a  square  garden; 
and  it  is  now  contended,  not  that  the 
vendee  could  violate  that  contract, 
but  that  he  might  sell  the  piece  of 
land  and  that  the  purchaser  from 
him  may  violate  it  without  this  court 
having  any  power  to  interfere.  If 
that  were  so,  it  would  be  impossible 
for  an  owner  of  land  to  sell  part  of 
it  without  incurring  the  risk  of  ren- 
dering what  he  retains  worthless. 
It  is  said  that  the  covenant,  being 
one  which  does  not  run  with  the 
land,  tliis  court  cannot  enforce  it. 
But  the  question  is  not  whether  the 
covenant  runs  with  the  land,  but 
whether  a  party  shall  be  permitted 
to  use  the  land  in  a  manner  incon- 
sistent with  the  contract  entered  into 
by  his  vendor,  and  with  notice  of 
which  he  purchased.  Of  course  the 
price  should  be  affected  by  the  cove- 
nant, and  nothing  could  be  more  in- 
equitable than  that  the  original  pur- 
chaser should  be  able  to  sell  the 
property  the  next  day  for  a  greater 
price,  in  consideration  of  the  assignee 
being  allowed  to  escape  from  the  lia- 
bility which  he  had  himself  under- 
taken. That  the  question  does  not 
depend  upon  whether  the  covenant 
runs  with  the  land  is  evident  from 


723 


S477 


Relating  to  Restrictive  Covenants. 


it  is  decided  that  even  if  an  action  of  covenant  will  not  lie  by  the 
grantee  because  the  deed  was  not  sealed  by  him,  a  court  of  equity 
will  restrain  a  grantee,  or  those  claiming  under  him,  from  doing 
that  which  he  has  agreed  not  to  do,  by  the  deed  accepted  by  him. 
The  agreement  qualifies  and  attaches  itself  to  the  estate  which  he 
takes,  and  all  persons  claiming  under  his  deed  are  charged  with 
notice  of  the  agreement  and  are  bound  by  it.13 

§  477.  Though  covenant  not  in  writing. — The  equity  resulting 
from  a  valid  agreement  by  the  owner  of  land  restricting  its  use, 
though  not  a  covenant  running  with  the  land  or  a  legal  exception 
or  reservation  out  of  it,  but  merely  a  personal  contract,  goes  with 
the  land  into  the  hands  of  a  purchaser  from  such  owner  who  did 
not  buy  in  good  faith,  but  with  notice,  and  may  be  enforced  by  in- 
junction, and  it  is  not  essential  that  the  agreement  should  be  in 
writing  or  be  binding  at  law,  or  that  any  priority  of  estate  should 
exist  between  the  parties.14     But  in  case  of  an  injunction  to  re- 


this:  that  if  there  was  a  mere  agree- 
ment and  no  covenant,  this  court 
would  enforce  it  against  the  party 
purchasing  with  notice  of  it;  for,  if 
an  equity  is  attached  to  the  property 
by  the  owner,  no  one  purchasing  with 
notice  of  that  equity  can  stand  in  a 
different  situation  from  the  party 
from  whom  he  purchased.' " 

13.  Atlantic  Dock   Co.  v.  Leavitt, 
54  N.  Y.  35,  13  Am.  Rep.  556. 

14.  G.,  having  a  contract  for  the 
purchase  of  land  on  which  to  erect 
flats  in  the  rear  of  houses  owned  by 
plaintiff  and  others,  in  consideration 
of  a  large  advance  on  his  contract 
price  transferred  the  contract  to 
them,  and  agreed  with  plaintiff  that 
he  would  not  erect  any  flats  in  the 
immediate  neighborhood.  Soon  after- 
wards he  purchased  other  land  in  the 
vicinity,  which,  after  commencing 
the  erection  of  flats  thereon,  he 
transferred  for  a  valuable  considera- 


tion to  his  wife,  who  took  with  full 
notice  of  G.'s  agreement  with  plain- 
tiff, hut  continued  the  erection  of 
the  buildings.  Held,  that  plaintiff 
was  entitled  to  an  injunction  to  pre- 
vent their  erection,  though  the  agree- 
ment of  G.  was  a  mere  personal 
agreement,  not  relating  to  any  spe- 
cific land,  and  that  it  did  impose  a 
covenant  or  equity  which  could  be 
enforced  against  a  subsequent 
grantee  from  him,  with  notice  of  the 
agreement.  Lewis  v.  Gollner,  129  N. 
Y.  227,  29  N.  E.  81,  reversing  14  N. 
Y.  Supp.  362.  On  the  appeal,  Finch, 
J.,  said:  "It  has  been  held  that  the 
equity  resulting  from  a  valid  agree- 
ment, though  the  latter  was  not  a 
covenant  running  with  the  land  but 
stood  solely  upon  the  ground  of  a 
personal  contract  dictating  the  mode 
of  user,  would  nevertheless  go  with 
the  lands  into  the  hands  of  a  pur- 
chaser with  notice  and  who  did  not 


724 


Relating  to  Restrictive  Covenants.  £  47S 

strain  a  violation  of  an  oral  agreement  as  to  the  use  and  occupation 
of  land  it  is  said  to  be  the  settled  doctrine  that  courts  of  equity 
will  refuse  such  relief  when  it  will  result  in  great  hardship  and 
injustice  to  one  party  without  considerable  gain  or  utility  to  the 
other.15 

§  478.  How  statute  of  frauds  affects  oral  covenants. — The 

agreement  not  to  use  certain  land  conveyed  for  a  particular  pur- 
pose, is  not  an  agreement  for  the  sale  of  an  interest  in  or  concern- 
ing land,  which  is  void  under  the  statute  of  frauds  if  not  in 
writing,  nor  is  it  an  agreement  not  to  be  performed  within  one 
year,  which  is  void  under  the  statute  if  not  in  writing.16  In  an 
action  to  enforce  by  injunction  an  oral  agreement  to  sell  land,  if 
acts  or  part  performance  are  -relied  upon  to  take  the  case  out  of 
the  statute  of  frauds,  they  must  be  unequivocally  referable  to  the 
agreement  and  must  change  the  relative  position  of  the  parties.17 
Thus  where  the  land  in  controversy  is  a  farm  of  which  complain- 
ant has  the  present  use,  and  the  acts  upon  which  he  relies  as  in 
part  performance  of  the  oral  agreement  may  be  considered  as  acts 
of  good  husbandry,  and  incidental  to  his  use  of  the  farm  and  to  his 

buy   innocently    and    in    good   faith.  sound  and  just." 

Whitney  v.  Union   R.   Co.,    11   Gray,  15.    Bimson    v.    Bultman,  3   App. 

363.    In  Hodge  v.  Sloan,  we  substan-  Div.    (N.   Y.)    198,   38   N.   Y.    Supp. 

tially  affirmed  that  doctrine,  holding  209. 

that  a  purchaser  without  restriction  16.    Bostwick     v.     Leach,     3     Day 

in  his  deed,  but  from  one  who  was  (Conn.),   476;    Hall   v.    Solomon,    61 

restricted    by    a    personal    covenant,  Conn.  476,  23  Atl.  876,  per  Carpen- 

not  running  with  the  land  or  bind-  ter,  J.:      "It   has   been   pretty   uni- 

ing  his  assigns,  yet  with  notice  of  the  formly     held    that    contracts    which 

facts,  is  bound  by  the  restriction  in  may   be    performed   within   one   year 

a  court  of  equity.    ...    In  Parker  are  not  within  the   statute.      Peters 

v.  Nightingale,  6  Allen,  344,  it  is  de-  v.    Westborough,    19    Pick.     (Mass.) 

clared  not  to  be  in  the  least  material  364;    Roberts    v.    Rockbottom   Co.,    7 

that      the      restrictive      stipulations  Met.    (Mass.)    46;   Lyon  v.  King,   11 

should  be  binding  at  law,  or  that  any  Met.    (Mass.)    411;    Doyle   v.   Dixon, 

privity  of   estate   should   subsist  be-  97  Mass.  212." 

tween    parties    in    order    to    render  17.  Nibert  v.  Baghurst,  47  N.  J. 

them     obligatory     and     to    warrant  Eq.  201,  20  Atl.  252.     See  Neibert  v. 

equitable  relief  in   case  of   their  in-  Baghurst,  25  Atl.  474;    Maddison  v. 

fraction.      I  think    that    doctrine  is  Alderson,  L.  R.  8  App.  Cas.  467. 

725 


§  479  Relating  to  Restrictive  Covenants. 

ownership  of  adjoining  land,  they  do  not  constitute  such  acts  of 
part  performance  as  will  take  the  case  out  of  the  statute  of  frauds.18 
An  agreement,  however,  to  locate  a  mining  claim  for  the  benefit  of 
another  need  not  be  in  writing.  If  a  party  in  pursuance  of  such 
an  understanding  locates  the  claim  in  his  own  name  at  the  expense 
of  another,  he  holds  the  legal  title  to  the  ground  in  trust  for  the 
benefit  of  the  party  for  whom  the  location  was  made;  and  the 
beneficiary  could,  upon  making  the  necessary  proofs,  compel  the 
locator  of  the  mining  claim  to  convey  the  title  to  him,  though  the 
agreement  so  to  do  was  not  in  writing.  This  familiar  principle 
has  often  been  applied  in  cases  where  a  party  has  entered  into  an 
oral  agreement  to  locate  mining  ground  for  the  joint  benefit  of 
himself  and  others  and  makes  a  location  in  his  own  name.  It  lias 
always  been  held  that  such  oral  agreements  are  not  within  the 
statute  of  frauds.1' 

§  479.  As  between  successors  to  title. — Courts  of  equity  will 
recognize  and  enforce  agreements  made  by  ajoining  proprietors 
concerning  the  occupation  and  mode  of  use  of  their  lands,  not 
only  as  between  the  parties  to  the  contract,  but  as  between  their 
vendees  with  notice.  And  to  warrant  equitable  relief  in  such  cases, 
it  is  not  material  that  the  agreement  be  binding,  as  a  covenant 
running  with  the  land,  or  that  any  privity  of  estate  subsist  between 
the  parties.20  Thus  where  adjacent  proprietors  by  mutual  agree- 
ment establish  the  boundaries  of  a  private  way  and  appropriate 
the  strip  of  land  embraced  therein  as  a  perpetual  easement  for 
the  common  benefit  of  all,  the  agreement  may  be  enforced  by 

18.  Barrett  v.   Geisinger,   148   111.  The    violation    of    a    negative 

98,  35  N.  E.  354.  easement  may  be  restrained  by  one 

19.  Book  v.  Justice  Mining  Co.,  who  owns  property  for  the  benefit 
58  Fed.  106;  Moritz  v.  Lavelle,  77  of  which  it  was  created,  irrespective 
Cat.  10;  Gore  v.  McBrayer,  18  Cal.  of  whether  there  was  a  privity  of  es- 
582;  Hirbour  v.  Heeding,  3  Mont.  tate  or  contract  between  the  parties 
13;   Welland  v.  Huber,  8  Nev.  203.  or  whether  an  action  at  law  is  main- 

20.  Parker  v.  Nightingale,  6  Al-  tainable.  Silberman  v.  Uhrlaub.  116 
len  (Mass.),  341;  Western  v.  Mac-  App.  Div.  (N.  Y.)  869,  102  N.  Y. 
Dermott,  L.  B.  2  Ch.  App.  72;  Tulk  Supp.  299. 

v.  Moxhay,  2  Phil.  Ch.  774. 

726 


Relating  to  Restrictive  Covenants.  §  480 

injunction  at  the  suit  of  a  purchaser  from  one  of  such  proprietors, 
against  a  purchaser  with  notice  from  another.21  And  where  the 
owner  of  lots  in  the  city  of  New  York  on  both  sides  of  a  street 
made  a  plan  exhibiting  the  street  as  widened  eight  feet  on  each 
side,  and  represented  to  several  vendees  of  different  lots  that  all 
the  buildings  to  be  erected  on  the  lots  he  had  sold,  or  should  sell, 
should  stand  back  eight  feet  from  the  line  of  the  street,  it  was 
decided  that  a  subsequent  purchaser  of  one  of  the  lots,  with  con- 
structive notice  of  the  facts,  would  be  restrained  from  building  on 
the  eight  feet  adjoining  the  street.22  A  proviso  in  a  deed  that  no 
mine  or  air  shaft  shall  be  intentionally  opened  by  the  grantors  or 
any  mining  fixtures  established  on  the  surface  of  land  conveyed 
to  a  land  and  improvement  company,  has  been  held  to  operate  in 
the  nature  of  a  covenant  running  with  the  land  prohibiting  the 
grantors,  their  heirs  and  assigns  from  opening  any  mine  or  air 
shaft  or  from  establishing  fixtures  on  the  surface  of  such  land, 
which  covenant,  a  court  of  equity  will  enjoin  a  mining  company, 
which  purchased  the  rights  of  the  grantors,  from  violating.23 

§480.  Restrictions  as  to  buildings;  though  no  damage. — 
Where  land  is  conveyed  by  a  deed  containing  restrictions  as  to 
the  class  or  character  of  buildings  which  may  be  erected  thereon, 
a  court  of  equity  will  grant  an  injunction  to  prevent  a.  violation 
of  such  restriction.24    So  a  breach  of  a  covenant  as  to  the  height 

21.  Shields  v.  Titus,  46  Ohio  St.  22.  Tallmadge  v.  East  River  Bank, 

628,  22  N.  E.  717.     It  was  held  in  26  N.  Y.  105;   Barrow  v.  Richard,  8 

Seegar  v.  Harrison,  25  Ohio  St.    14,  Paige,  351;    Hill  v.  Miller,  3   Paige, 

that   where   the   owners   of    adjacent  254.     See,  also,  Rankin  v.  Huskisson, 

lands  agreed  that  each  would  appro-  4    Sim.    13;    Whatman   v.   Gibson,    9 

priate   from    his   land   a  strip   to  be  Sim.     190;    Schreiber    v.    Creed,    10 

used  in  common  for  a  public  street,  Sim.  9. 

and    conveyances    and    improvements  2.3.  Electric  City  Land  &.  S.  Co.  ▼. 

have  been  made  on  the  faith  that  the  West    Ridge    Coal    Co.,    187    Pa.    St. 

street  would    be    opened,  the   agree-  500,  41  Atl.  458. 

ment    may    be    enforced    in    equity,  24.    Meriwether    ▼.     Joy,    85    Mo. 

against    a    purchaser     with     notice,  App.    634;    Meigs    v.    Milligan.    177 

whether    the    public    authorities    ac-  Pa.  St.   66,  35  Atl.  600;    Muzzarelli 

cept  the  street  as  dedicated  to  public  v.   Hulshizer,    163    Pa.    St.   643,  30 

use  or  not.  Atl.  291. 

727 


§  480  Relating  to  Restrictive  Covenants. 

of  a  building  may  be  enjoined.25  And  the  erection,  in  violation  of 
restrictions,  of  buildings  upon  land  dedicated  for  a  public  park 
may  be  enjoined.26  And  where  a  building  is  erected  with  projec- 
tions in  violation  of  a  building  restriction,  a  mandatory  injunction 
may  be  granted  for  the  removal  of  such  projections.27  A  grantee 
may  also  be  enjoined  from  violating  a  covenant  not  to  build  on  the 
land  conveyed  to  him  a  dwelling  of  less  than  a  specified  value.28 
And  a  covenantor  may  be  compelled  to  keep  the  spirit  of  his  cove- 
nant and  not  merely  its  letter.29  So  where  land  was  conveyed  with 
ai  restriction  against  the  erection  of  buildings,  except  dwellings  not 
to  cost  less  than  a  specified  sum,  and  necessary  outbuildings,  and 
the  grantee  put  up  on  the  land  a  tent  of  small  cost  for  summer 
use,  and  a  stable  to  be  used  in  connection  with  the  tent  or  with  a 
house,  should  one  ever  be  built,  it  was  held  that  the  tent  was  for- 
bidden by  the  restriction,  and  that  as  there  was  no  proper  main 
building,  the  stable  was  not  a  necessary  outbuilding;  and  that, 
therefore,  the  grantor  could  by  injunction  compel  their  removal, 
and  restrain  the  grantee  from  using  his  lot  in  the  manner  in  which 
he  had  been  using  it.30  And  where  on  a  sale  of  contiguous  lots  the 
grantor  and  grantees  covenanted  that  each  of  the  lots  should  be 
subject  to  a  restriction  that  none  of  them  should  be  used  for  pur- 
poses other  than  a  "  dwelling  house,  office  or  stable,"  the  erection 
of  a  church  on  one  of  the  lots  was  enjoined,  as  the  intention  of  the 
covenant  was  to  prevent  the  erection  of  buildingsi  of  public  resort, 
and  if  a  church  could  not  be  prevented  in  the  first  instance,  it 
might  afterwards  be  converted  into  a  theater  or  a  hippodrome.31 

25.  Brown  v.  O'Brien,  168  Mass.  bay  windows  were  buildings  within 
484,  47  N.  E.  195.  the  meaning  of  the  covenant. 

26.  Chicago  v.  Ward,  169  111.  392,  30.  Blakemore  v.  Stanley,  159 
43  N.  E.  927,  38  L.  R.  A.  849.  Mass.    6,    33    N.    E.   689.      That   the 

27.  Attorney-General  v.  Algonquin  tent  was  a  building,  within  the  scope 
Club,  153  Mass.  447,  27  N.  E.  1,  11  of  the  restriction,  see  Nowell  v. 
L.  R.  A.  500.  See  Morrow  v.  Hassel-  Boston  Academy,  130  Mass.  209. 
man  (N.  J.  Ch.  1905),  61  Atl.  369.  That  an  outbuilding  must  be  used  in 

28.  Collins  v.  Castle,  L.  R.  36  Ch.  connection  with  a  main  building,  see 
D.  243;  Nottingham  Patent,  etc.,  Commonwealth  v.  Intoxicating  Li- 
Co.  v.  Butler,  16  Q.  B.  D.  778.  quors,  140  Mass.  287,  289,  3  N.  E.  4. 

29.  Manners  v.  Johnson,  L.  R.  1  31.  St.  Andrew's  Church's  Appeal, 
Ch.  D.  673,  where  it  was  held  that  67  Pa.  St.  512. 

728 


Relating  to  Restrictive  Covenants.  §  481 

It  has  also  been  held  that  in  such  a  case  the  amount  of  damage 
plaintiff  might  suffer  from  the  threatened  breach  ought  not  to  enter 
as  an  element  into  the  determination,  as  there  was  a  manifest 
distinction  between  cases  depending  on  nuisance  and  on  contract.32 

§481.  Covenant  against  tenement  houses;  dwellings  only. — 
The  question  whether  apartment  houses  or  "  flats  "  are  "  tenement 
houses  "  within  the  meaning  of  an  agreement  not  to  erect  on  cer- 
tain premises  "  any  house  of  the  character  or  description  commonly 
known  as  '  tenement  houses/  "  is  not  so  reasonably  free  from  doubt 
as  to  authorize  a  preliminary  injunction  in  an  action  to  restrain 
the  erection  of  "  flats  "  on  such  premises.33  And  it  is  proper  to 
refuse  an  injunction  in  such  a  case  where  owing  to  a  change  in 
the  locality  as  to  the  character  of  building  erected  it  is  inapplicable 
or  unjust  to  enforce  the  covenant.34  And  the  injunction 
is  properly  denied  on  the  defendant's  explicit  and  well-supported 
allegation  that  the  building  he  is  erecting  will  not  be  a  tenement 
house.35  But  flats  and  tenement  houses  may  be  classed  together 
as  opposed  to  private  dwellings,  and  as  bringing  together  a  chang- 
ing and  floating  population  under  one  roof,  and  experience  teaches 
that  cheap  flats  may  be  so  badly  managed  as  to  be  quite  as  un- 
aristocratie  as  tenement  houses.36 

32.   Hills   v.   Miller,   3   Paige    (N.  to  restrain    the    erection    of  a  tene- 

Y.),  254;    Attorney-General   v.   Rail-  ment,  instead  of  a  private  residence, 

way    Companies,    L.    R.    3    Ch.    App.  in  violation  of  a  contract,  defendant 

100;    Collins  v.  Castle,  L.  R.  36  Ch.  denied  that  the  house   to  be  erected 

D.  243.  was  intended  to  be  a  tenement,  and 

Such  a  covenant  may  be  enforced  positively  testified  that  the  same 
without  regard  to  the  question  of  re-  would  be  permanently  occupied  by 
suiting  damage.  Trustees  v.  Lynch,  herself  and  family  as  a  private  resi- 
70  N.  Y.  440;  Staines  v.  Dorman,  25  dence,  and  was  designed  for  that  pur- 
Ohio  St.  580;  Commonwealth  v.  pose,  her  testimony  being  supported 
Railroad  Co.,  24  Pa.  St.  160;  Dick-  by  affidavits  of  her  architect  and 
inson  v.  Canal  Co.,  15  Beav.  260.  others.     Held,  that  an  order  denying 

.33.  Boyd  v.  Kerwin  (Sup.),  15  N.  the    injunction    was    properly    made. 

Y.  Supp.  721.     And  see  Musgrave  v.  Grenell  v.  Stillwell,   14  N.  Y.  Supp. 

Sherwood,  23  Hun   (N.  Y),  674.  262. 

34.  McClure  v.  Leaycraft,  183  N.  36.  Lewis  v.  Gollner,  129  N.  Y. 
Y.  36,  75  N.  E.  961.  227,  29  N.  E.  81.     See,  also,  Amer- 

35.  In  an  action  for  an  injunction  man  v.  Deane,  132  N.  Y.  355,  30  N. 

729 


§§  481a,  482       Relating  to  Restrictive  Covenants. 

§  481a.  Restrictions  as  to  use  of  premises — Where  property 
conveyed  is  restricted  in  respect  to  its  use  it  is  a  general  rule  that 
a  court  of  equity  will  enjoin  a  breach  of  such  restriction.37  And 
the  fact  that  there  may  have  been  some  occasional  violations  of 
such  a  restriction  on  other  property  similarly  restricted  will  not 
prevent  the  granting  of  the  injunction  where  such  violations  were 
not  acquiesced  in.37a  And  the  causing  of  a  substantial  injury  is  not 
essential  to  the  granting  of  an  injunction  in  this  class  of  cases.37b 
The  proper  use  of  premises,  however,  for  a  certain  business  in 
accordance  with  the  intention  of  both  parties  at  the  time  of  the 
execution  of  a  lease  will  not  be  enjoined  as  in  violation  of  a  cove- 
nant that  the  premises  shall  not  be  used  by  the  lessee  in  any 
unlawful,  improper  or  offensive  manner.38 

§  482.  Covenant  not  to  sell  liquors. — Injunction  is  the  proper 
remedy  to  restrain  the  breach  of  a  contract  not  to  sell  intoxicating 
liquors  upon  the  granted  premises,  in  less  quantities  than  five 
gallons.  Such  a  restriction  is  not  a  general,  but  only  a  limited  and 
reasonable  restraint  of  trade.  It  may  also  be  a  covenant  running 
with  the  land,  and  therefore  effectual  against  a  tenant  or  assignee 
of  the  vendee  having  notice  of  it.39  So  where  a  deed  contains  a 
restrictive  clause  providing  that  the  premises  conveyed  shall  not 
be  used  by  the  grantee  for  saloon  purposes  so  long  as  the  adjoining 
property  is  owned  by  the  grantor,  equity  will  enjoin  the  grantee 
or  those  holding  as  subsequent  grantees  from  a  breach  thereof.40 

E.  741,  where  the  court  did  not  un-  37a.  De  Lima  v.  Mitchell,  49  Mi3c. 

dertake  to  distinguish  a  flat  from  a  R.   (N.  Y.)   171,  1)8  N.  Y.  Supp.  811. 

tenement-house.  37b.  Star  Brewery  Co.  v.  Primas, 

37.  Bayard  v.  Bancroft    (Del.  Ch.  163  111.  652,  45  N.  E.  145.     See  Cor- 

1905),  62  Atl.  6;   Star  Brewing  Co.  nish  v.  Wiessman,  56  N.  J.  Eq.  610, 

v.  Primas,  163  III.  652,  45  N.  E.  145;  35  Atl.  408,  holding  that  a  possibil- 

Bryden  v.  Northrup,  58  111.  App.  233;  ity  of  damage  is  sunicient. 

Hills  v.  Metzenroth,   173   Mass.   423,  38.  Browne    v.    Niles,    165    Mass. 

53  N.  E.  890;  Dorr  v.  Harralian,  101  276,  43  N.  E.  90. 

Mass.  531 ;   De  Lima  v.  Mitchell,  49  39.  Sutton  v.  Head,  86  Ky.  156,  5 

Misc.  R.  (N.  Y.)  171,  98  N.  Y.  Supp.  S.    W.    410.      See,    also,    Turner    v. 

811;    Schenck   v.    Campbell,    11    Abb.  Johnson,  7  Dana    (Ky.)    435;    Reilly 

Pr.    (N.  Y.)    292.     See,  also,  follow-  v.  Otto,  108  Mich.  330,  66  N.  W.  228. 

ing  section.  40.   Star   Brewery   Co.   v.   Primas, 

163  111.  652,  45  N.  E.  145. 

730 


Relating  to  Restkictive  Covenants.  §  483 

And  it  has  been  decided  that  in  an  action  by  the  grantors  of  cer- 
tain premises,  to  restrain  a  grantee  from  using  it  for  a  saloon,  or 
for  the  sale  of  intoxicating  liquor,  under  a  parol  agreement  to  that 
effect,  an  injunction  against  the  grantee  will  lie  on  account  of  a 
lease  made  on  condition  that  the  lessee  secure  a  license,  though  the 
lessee  after  he  had  taken  possession  and  the  license  had  been 
granted,  never  called  or  paid  for  the  license,  nor  paid  rent  to  the 
lessor.41  The  grantor,  cannot,  however,  enjoin  the  sale  of  intoxi- 
cants on  a  lot  which  he  conveyed  on  the  express  condition  that  they 
should  never  be  sold  thereon,  where  he  subsequently  conveyed  the 
adjoining  lot  without  such  restriction,  and  intoxicants  are  sold  on 
it :  and  it  is  no  answer  that  the  omission  of  the  restriction  from 
the  subsequent  conveyance  was  a  mistake,  if  he  took  no  steps  to 
correct  it.42 

§  483.  Enjoining  vendor  from  breach  of  covenants. — A  vendor 
also  may  be  enjoined  from  a  breach  of  covenants  he  has  inserted 
in  a  conveyance  of  land,  or  made  in  reference  thereto.  Thus  a 
grantee  of  a  lot  adjoining  a  public  square,  who  has  a  special  cove- 
nant from  the  original  owner  of  the  square,  that  it  shall  be  kept 
open  for  the  benefit  of  his  lot,  may  have  an  injunction  to  prevent 
the  grantor  from  violating  the  covenant,  and  such  a  covenant  runs 
with  the  land,  and  without  any  special  assignment  of  it,  passes  to 
a  subsequent  grantee  of  the  premises.43 

41.  Hall  v.  Solomon,  61  Conn.  476,  right  afterwards  to  sell  an  adjoining 
23  Atl.  876.  lot  without  restriction,   and   thereby 

42.  Jenks  v.  Pawlowski,  98  Mich.  diminish  the  value  of  his  former 
110,  56  N.  W.  1105,  per  McGrath,  J.:  grantee's  property,  and  still  be  al- 
"  Restrictions  of  this  class  are  sus-  lowed  to  insist  upon  the  restriction, 
tained  upon  the  theory  that  a  party  Chippewa  Lumber  Co.  v.  Tremper,  75 
has  the  right,  in  disposing  of  his  Mich.  36,  42  N.  W.  532." 
property,  to  prevent  such  a  use  by  43.  Trustees,  etc.,  v.  Cowen,  4 
the  grantee  as  might  diminish  the  Paige  (N.  Y.),  510,  per  Walworth, 
value  of  remaining  land,  or  impair  Ch.:  "The  covenant  in  the  convey- 
its  eligibility  for  other  uses.  Wat-  ance  to  Hersey,  not  to  erect,  or  suf- 
rous  v.  Allen,  57  Mich.  362;  Smith  v.  fer  to  be  erected,  any  building  on  the 
Barrie,  56  Mich.  314.  But  is  there  street,  highwpy,  or  common,  owned 
no  mutuality  in  such  agreement?  It  by  the  grantor,  in  front  of  the  prem- 
cannot  be  said  that  a  grantor  has  a  ises  conveyed,  was  a  covenant  running 

731 


§§  483a,  484       Relating  to  Restrictive  Covenants. 

§  483a.  Same  subject;  tract  of  land  divided  into  lots. — Where 
the  owner  of  a  tract  of  land  lays  it  out  into  blocks,  lots  and  streets 
upon  a  map  and  then  sells  lots  by  reference  to  the  map  he  becomes 
"bound  to  the  grantees  not  to  use  the  portion  so  devoted  to  the 
common  advantage  otherwise  than  in  the  manner  indicated.44  So 
where  property  has  been  sold  under  such  conditions  an  attempt  of 
the  grantor  to  alter  the  location  and  narrow  the  width  of  the  streets 
delineated  on  the  map  is  an  infringement  of  the  rights  of  a  grantee 
which  entitles  him  to  the  aid  of  a  court  of  equity  by  way  of  in- 
junction to  restrain  a  violation  of  the  implied  covenant.45  In  such 
a  case,  however,  there  is  held  to  be  no  implied  covenant  that  the 
owner  of  the  lots  will  sell  them  in  the  parcels'  indicated  on  the 
map  and  that  he  will  not  be  enjoined  from  selling  them  in  such 
parcels  as  he  sees  fit  or  from  devoting  any  part  of  the  unsold  lots 
to  public  uses  either  as  streets,  parks,  or  in  other  modes  of  a  gen- 
eral nature  calculated  to  give  additional  value  to  the  rest  of  the 
tract.46  In  this  connection  it  is  also  decided  that  there  is  a  differ- 
ence between  cases  where  a  restriction  is  only  intended  for  the 
benefit  of  the  grantor,  and  those  where  it  is  imposed  upon  the 
lands  as  a  part  of  a  general  scheme  affecting  the  entire  tract 
divided  into  parcels  for  the  benefit  of  the  part  conveyed  as  well  as 
the  part  reserved.  In  the  latter  case  the  restriction  may  be  enforced 
by  the  owner  of  any  parcel  against  every  other  owner.47 

§  484.  Lessees'  covenants. — The  breach  by  a  tenant  of  the 
covenants  of  his  lease  or  his  contract,  limiting  the  use  of  the  de- 
mised premises,  will  be  freely  enjoined.     Thus  a  covenant  in  a 

with  the  land.    It  was  the  grant  of  a  Hills    v.    Miller,    3    Paige     (N.    Y.), 

privilege   or    easement  which    passed  254." 

to  White  under  the  conveyance  from  44.  Lenning  v.  Ocean  City  Assn., 

Hersey  to  him;    and  no  separate  as-  41  N.  J.  Eq.  606,  7  Atl.  491,  56  Am. 

signment  of  the  covenant  was  neces-  Rep.  616. 

sary  to  transfer  all  Hersey's  interest  45.  Herold  v.  Columbia  Inv.  &  R. 

therein.     And  this  court  has  already  E.  Co.    (N.  J.  1907),  67  Atl.  607. 

decided  that  the  grantee  of  such  an  46.  Herold  v.  Columbia  Inv.  &  R. 

easement  is  entitled  to  an  injunction  E.  Co.   (N.  J.  1907),  67  Atl.  607. 

to  restrain  the  owner  of  the  servient  47.  Silberman     v.     Uhrlaub,     116 

tenement     from     erecting     buildings  App.   Div.    (N.   Y.)    869,    102   N.  Y. 

thereon  in  violation  of  his  covenant.  Supp.  299. 

732 


Relating  to  Restrictive  Covenants.  §  484 

lease,  restricting  the  use  of  the  demised  store  for  the  purpose  of 
the  dry  goods  jobbing  business,  will  be  enforced  by  injunction, 
though  no  irreparable  injury  to  plaintiff  be  shown.48  And  it  is  no 
defense  to  an  action  to  enjoin  a  use  of  premises  in  violation  of  a 
covenant  in  a  lease  that  the  prohibited  use  will  not  deteriorate  the 
premises  in  value.49  And  where  the  owner  of  two  rural  lots  on  a 
river,  had  his  family  mansion  on  one  and  sold  the  other,  with  a 
covenant  that  it  should  not  be  used  for  any  purpose  offensive  to 
the  grantor,  or  that  would  deteriorate  his  adjoining  premises,  and 
the  purchaser  leased  his  lot  for  the  purpose  of  a  wharf  and  a  rail- 
road, it  was  held  that  the  construction  of  the  wharf  could  be  en- 
joined, as  it  would  draw  nocturnal  debauchers  rambling  by  water 
from  a  neighboring  city.b0  Again  where  a  land  owner  in  Ireland  let 
a  few  acres  of  land  to  a  Catholic  bishop,  in  order  to  provide  a 
suitable  residence  and  holding  for  the  officiating  clergyman  ap- 
pointed by  the  bishop,  it  was  held,  upon  the  true  construction  of 
the  agreement,  which  was  rather  informal,  that  the  erection  upon 
the  land  of  wooden  huts,  as  a  shelter  for  evicted  tenants,  was  an 
application  of  the  premises  to  a  purpose  other  than  the  specified 
one,  and  that  the  owner  was  entitled  to  have  it  restrained  by  in- 
junction.51 And  where  a  conveyance,  by  plaintiff,  of  a  dwelling 
house  and  shop,  contained  a  covenant  that  the  grantee,  his  heirs 
or  assigns,  would  not  use  the  same  for  the  sale  of  spirituous  liquors, 
it  was  held  that  a  tenant  of  the  grantee  was  fixed  with  constructive 
notice  of  the  covenant,  and  could  be  enjoined  from  selling  spirits 

48.  Steward  v.  Winters,  4  Sandf.  break  up  meadow  land,  will  be 
Ch.  (N.  Y.)  587..  where  defendant  enforced  by  injunction  where  he  is 
was  enjoined  from  carrying  on  the  about  to  build  thereon.  DeWilton  v. 
auction    business    in    a    store    leased  Saxon,  6  Ves.  106. 

only  for  dry  goods  jobbing.  A  restriction  against  mowing 

49.  Dodge   v.   Lambert,    15   N.  Y.        will     be     enforced     by     injunction. 
Super.  Ct.  570.  Blagrave   v.   Blagrave,    1   DeG.   &   S. 

50.  Seymour      v.      McDonald,  4       252. 

Sandf.    Ch.    (N.    Y.)    502;    Hills    v.  A  lessee  who  has   agreed  not 

Miller,  3  Paige   (N.  Y.),  254.  to  nse  demised  premises  for  any 

51.  Kehoe  v.  Marquess  of  Lans-  purpose  of  business,  may  be  en- 
downe  (1893),  App.  Cas.  451;  aff'g  joined  from  carrying  on  a  school 
29  L.  R.  Ir.  230.  there.     Kemp  v.  Sober,  1  Sim.  N.  S. 

A    tenant's    covenant    not    to       520. 

733 


§  485  Relating  to  Restrictive  Covenants. 

on  the  premises.52  And  a  covenant  that  the  demised  premises  shall 
not  be  used  for  any  purpose  which  may  cause  annoyance  or  dam- 
age to  the  lessor,  or  to  his  neighbors,  will  be  enforced  by  injunction 
where  the  premises  are  being  used  as  a  hospital  for  the  treatment 
of  contagious  diseases.53  And  where  the  lease  contains  a  covenant 
that  no  business  shall  be  conducted  on  the  demised  premises,  the 
use  of  them  for  a  hospital  where  poor  patients  pay  according  to 
their  means  will  be  enjoined  ;54  and  so  will  the  use  of  them  for  a 
school.55  Where  a  lease  of  certain  land  with  the  mill  thereon,  gave 
the  lessee  the  privilege  of  using  all  the  timber  on  the  leased  land, 
with  the  restriction  that  all  the  valuable  timber  be  used  only  for 
mill  purposes,  it  was  held  that  the  lessee  was  not  restricted  to  the 
use  of  the  land  only  for  the  purposes  of  the  mill.56 

§  485.  Same  subject. — Where  a  lessee  covenants  not  to  affix 
or  permit  any  outward  mark  or  show  of  business  on  the  demised 
premises,  he  may  be  restrained  by  injunction  from  a  violation  of 
the  covenant,57  and  such  an  injunction  may  run  not  only  against 
an  offending  sub-lessee,  but  also  against  the  original  lessee,  if  he 
has  not  parted  with  his  entire  interest  in  or  control  of  the  prem- 
ises,55 or  if  he  justifies  the  acts  of  the  sub-lessee.59  A  lessee  will 
not,  however,  be  enjoined  where  his  contract  with  the  lessor  is  so 
oppressive  and  unjust  that  a  court  of  equity  ought  not  to  interpose 
for  its  enforcement.60    And  a  covenant  in  a  lease  by  the  lessee  for 

52.  Feilden  v.  Slater,  L.  R.  7  Eq.  junction  from  being  used  for  a  beer 
523.     See,  also,   Sutton  v.  Head,   86       establishment. 

Ky.  156,  5  S.  W.  410.  57.  Evans  v.  Davis,  L.  R.   10  Ch. 

53.  Tod-Heatly  v.  Benham,  L.  R.       D.  747. 

40  Ch.  D.  80;   Bramwell  v.  Lacy,  L.  58.  See  Clements  v.  Welles,  L.  R. 

R.  10  Ch.  D.  691.    And  see  Barret  v.  1  Eq.  200. 

Blagrave,  5  Ves.  555.  59.  See    Bowes    v.    Law,    L.    R.    9 

54.  Bramwell  v.  Lacy,  L.  R.  10  Ch.  Eq.  636. 

D.  691.  60.  Talbot  v.   Ford,   13  Sim.    173, 

55.  Kemp  v.  Sober,  1  Sim.  N.  S.  per  Vice  Ch.:  "The  covenant  en- 
520.  ables  the  lessor,  at  any  time,  to  put 

56.  Reed  v.  Lewis,  74  Ind.  433.  a  ne  amoveas  upon  the  lessee's  stock 
Compare  Maddox  v.  White,  4  Md.  in  trade  and  other  articles  used  by 
72,  where  a  building,  which  was  let  him  in  working  the  mines;  that  is,  it 
for  a  postoffice,  was  prevented  by  in-  enables  the  lessor  to  defeat  the  ob- 

734 


Relating  to  Restrictive  Covenants.  §  486 

the  benefit  of  the  lessor  only,  and  not  for  the  benefit  of  adjacent 
owners  and  adjacent  property,  will  not  be  enforced  for  the  benefit 
of  another  lessee  of  adjoining  property  from  the  same  lessor.61 
And  where  a  lease  was  made  with  knowledge  both  on  the  part  of 
the  lessor  and  of  his  grantor  of  the  purpose  for  which  the  lessee 
intended  to  use  the  premises,  and  he  was  assured  by  the  agent  of 
the  grantor  that  he  would  not  be  interfered  with  in  the  use  in- 
tended, it  was  decided  that  such  use  would  not  be  enjoined  as  in 
violation  of  a  covenant  in  the  deed  from  the  grantor  to  the  lessor 
restricting  the  use  of  the  premises  for  such  a  purpose.62 

§  486.  Sub-lessees. — A  sub-lessee  will  be  enjoined  from  carry- 
ing on  an  auction  business  in  breach  of  a  covenant  in  the  original 
lease,  a  knowledge  of  which  he  could  easily  have  obtained  by 
inquiry.63  And  where  a  lease  restricted  the  use  of  the  demised 
building  to  "  the  sale  of  teas,  coffees  and  similar  goods,"  and  the 
lessors  consented  to  its  use  by  a  sub-lessee  for  the  sale  of  music, 
another  sub-lessee  who  used  it  for  the  sale  of  misfit  clothing  was 
enjoined  at  the  suit  of  the  original  lessors.64  The  breach  of  a  cove- 
nant in  a  lease  not  to  underlet,  will  also  be  enjoined  when  it 
appears  it  would  be  impracticable  to  accurately  ascertain  the  dam- 

ject  and  intention  of  the  lessee  in  sublet,  without  owner's  consent,  for  a 
taking  the  lease.  .  .  .  My  opin-  real  estate  office.  Godfrey  v.  Black, 
ion  is  that  it  is  so  oppressive  to  the  39  Kan.  193.  In  speaking  of  a  re- 
lessee  that  this  court  ought  not  to  entry  by  the  landlord,  the  court,  in 
give  effect  to  it;  and  therefore  I  Bodwell  v.  Crawford,  26  Kan.  292, 
shall  not  grant  the  injunction."  said:      "True    he    may    perhaps   de- 

61.  Master  v.  Hansard,  L.  R.  4  clare  the  lease  forfeited  and  recover 
Ch.  D.  718.  the  property,  but  he  may  not  desire 

62.  Woodliaven  Junction  Land  Co.  to  do  this;  he  may  not  be  able  to 
v.  Solly,  148  N.  Y.  42,  42  N.  E.  404.  lease   for   the    same   rent,    or    to   an 

63.  Parker  v.  Whyte,  32  L.  J.  Ch.  equally  responsible  tenant,  and  the 
520.  See,  also,  Wilkinson  v.  Rogers,  lessee  ought  not  to  be  permitted  to 
12  Weekly  Rep.  284,  where  a  cove-  compel  the  lessor  either  to  take  back 
nant  running  with  the  land  was  held  the  property  or  tolerate  a  forbidden 
to  be  binding  on  an  assignee  of  the  use."  See,  also,  Stees  v.  Kranz,  32 
lease  and  his  sub-tenant.  Also,  Minn.  313  where  a  sub-lessee  was  en- 
Clements  v.  Welles,  L.  R.  1  Eq.  200.  joined    from    selling    intoxicating    li- 

64.  Wertheimer  v.  Hosmer,  83  quors  in  breach  of  a  covenant  in  the 
Mich.  56.     The  rule  in  the  text  was  original  lease. 

applied  where  a  part  of  a  hotel  was 

735 


§  487  Relating  to  Restrictive  Covenants. 

ages  caused  by  the  breach,  and  no  facts  are  shown  which  would 
make  it  inequitable  to  enforce  it.60 

§  487.  Enjoining  lessor  from  breach  of  covenants. — A  lessor 
also  will  be  enjoined  from  violating  his  covenants  inserted  in  a 
lease  for  the  benefit  or  protection  of  the  lessee.  This  rule  was 
applied  where  the  owner  of  a  slaughter-yard,  by  his  lease  of 
adjoining  premises  to  a  fertilizer,  gave  him  the  exclusive  right  to 
take  refuse  from  the  slaughter-yard ;  and  was  applied  also  against 
another  lessee  of  the  original  lessor,  who  had  acquired  his  right 
subsequent  to  and  with  notice  of  plaintiff's  lease.66  And  where 
a  lease  contains  a  covenant  that  the  lessor  will  not  rent  the  adjoin- 
ing premises  for  the  conduct  of  the  same  business  as  that  in  which 
the  lessee  is  engaged,  an  injunction  may  be  granted  to  enforce  the 
covenant  against  the  lessor  and  one  who  leased  the  premises  with 
notice  of  such  covenant.67  And  a  lessor  will  be  enjoined  from 
erecting  a  structure  on  premises  he  has  leased,  in  such  a  manner 
as  seriously  to  impair  the  lessee's  use  of  the  demised  property.08 
And  a  covenant  running  with  land,  which  gives  a  right  of  passage, 
may  be  injunctively  enforced  by  the  lessee  of  the  covenantee.69 

65.  Sloan    v.    Martin,    54    N.    Y.  67.  Waldorf-Astoria    Segar   Co.  v. 

Super.  87.    In  Barrington  Apartment  Solomon,   109  App.  Div.    (N.  Y.)    65, 

Assn.  v.  Watson,  38  Hun,  545,  plain-  95  N.  Y.  Supp.  1053    aff'd  in  184  N. 

tiff    let    to    defendant    Stewart    an  Y.  584,  77  N.  E.   1197. 
apartment,  by  a  lease  containing  co-  68.  Raband  v.  Frank,  7  Mo.  App. 

venants    against    subleasing    without  64.     A   lessor  will   be  enjoined   from 

plaintiff's  written  consent,  and  that  cutting  down,  in  violation  of  his  cove- 

for   every   subsequent   assignment   or  nant,  trees  on  his  premises  adjoining 

letting   the   like   consent   of   plaintiff  the   demised   premises.      Nicholson  v. 

should    be    obtained.      Stewart,    with  Rose.  4  DeG.  &  J.   10.     And  may  be 

plaintiff's  consent,  sublet  to  Watson,  required  to  execute  a  contract  to  lay 

without  any  covenant  against  sublet-  out  a  garden  adjacent  to  the  lessee's 

ting.     Watson,  threatening  to  sublet  club  house.     Rankin  v.  Huskisson,  4 

to  another  who  was  objectionable  to  Sim.  13.     And  may  be  enjoined  from 

plaintiff,  was   enjoined,   and   the    in-  a  breach  of  a  covenant  giving  a  lessee 

junction  sustained  on  appeal.  an  exclusive  right  of  sale  of  certain 

66.  Manhattan  Mfg.  Co.  v.  N.  J.  goods.     Altman   v.   Royal   Aquarium 

Stock  Yard    Co.,   23   N.   J.   Eq.    161.  Soc,  L.  R.  3  Ch.  D.  228. 
And  see  Rogers  v.  Danforth,  9  N.  J.  69.  Avery  v.  New  York  Central  & 

Eq.  289,  295.  H.  R.  R.  Co.,  106  N.  Y.  142,  155,  12 

73G 


Relating  to  Restrictive  Covenants. 


§488 


But  a  lessee  must  inquire  into  his  lessor's  title  or  take  his  own 
risk  that  it  is  affected  by  inconvenient  restrictions.70 

§488.  Waiver  of  right  to  enjoin  breach;  acquiescence. — A 

condition  or  limitation  in  respect  to  the  erection  of  buildings  or 
restricting  or  limiting  to  particular  uses  the  property  conveyed 
may  be  waived  or  abandoned  by  the  subsequent  conduct  of  the 
grantor  or  the  party  or  parties  in  whose  favor  the  covenant 
existed,  so  that  a  court  of  equity  will  not  interfere  to  prevent  its 
violation.71  So  where  a  party  has  acquiesced  in  a  breach  of  a  cove- 
nant running  with  land  for  a  period  less  than  is  necessary  to  create 
a  bar  by  the  statute  of  limitations,  he  may  thereby  disentitle  him- 
self to  an  injunction  to  prevent  a  continuance  of  the  breach.72  And 
where  a  person  buys  land  under  a  covenant  to  use  it  for  certain 
specific  purposes,  and  no  other,  he  will  not  be  enjoined  from  using 
it  for  other  purposes,  where  plaintiff  has  permitted  him  to  go  on 
without  objection,  and  incur  great  expense  in  the  erection  of  an 
offending  building  or  structure.73     The  right,  however,  to  enforce 


N.  E.  619,  per  Peckham,  J.:  "The 
grantors  in  these  deeds  were  also  the 
owners  of  the  hotel  property,  and  the 
easement  provided  for  in  the  deeds 
for  the  transit  of  passengers  over  this 
twenty  feet  must  he  construed  as  re- 
served not  for  the  benefit  of  such  pas- 
sengers in  any  sense,  but  as  an  ease- 
ment reserved  for  the  benefit  of  the 
grantors,  being  owners  of  the  re- 
maining hotel  property,  and  as  ap- 
purtenant to  it,  and  fairly  necessary 
for  its  full  and  proper  enjoyment.  It 
therefore  runs  with  the  hotel  prop- 
erty and  in  favor  of  its  owner  or 
lessee,  the  latter  of  whom  has  such 
an  interest  in  its  existence  as  courts 
will  recognize  and  protect." 

70.  Parker  v.  Whyte,  1  Hem.  &  M. 
167. 

71.  Kentucky. — Duncan  v.  Central 
Pass.  Ry.  Co.,  85  Ky.  525,  4  S.  W. 
228. 


Massachusetts. — Scollard  v.  Nor- 
mile,  181  Mass.  412,  63  N.  E.  941; 
Whitney  v.  Union  Ry.  Co.,  11  Gray, 
359,  71  Am.  Dec.  715. 

Neio  Jersey. — Ocean  City  Assn.  v. 
Schurch,  57  N.  J.  Eq.  268,  41  Atl. 
914;  Trout  v.  Lucas,  54  N.  J.  Eq.  361, 
3o   Atl.   153. 

~New  York. — Moore  v.  Murphy,  89 
Hun,  175,  34  N.  Y.  Supp.  1130. 

Pennsylvania. — Acheson  v.  Stev- 
enson, 130  Pa.  St.  633,  18  Atl.  873. 
See,  also,  Gatzner  v.  St.  Vincent 
School  Society,  147  Pa.  St.  313,  23 
Atl.  452. 

72.  St.  Andrew's  Church's  Appeal, 
67  Pa.  St.  512,  519.  There  was  a 
query  in  this,  how  far  a  temporary 
structure  would  constitute  a  breach 
that  must  not  be  acquiesced  in. 

73.  Orne  v.  Fridenberg,  143  Pa. 
St.  487,  22  Atl.  832,  per  Paxson,  C. 
J. :     "  The  plaintiff  had  only  to  look 


737 


47 


§  488a  Relating  to  Restrictive  Covenants. 

a  covenant  is  not  affected  by  acquiescence  in  the  violation  of 
another  and  distinct  covenant  in  the  same  deed  and  as  to  the  use 
of  the  same  lot.74  And  though  a  person  may  have  lost  a  right  by 
acquiescence  to  enjoin  the  breach  of  a  covenant  forbidding  the  use 
of  land  for  manufacturing  purposes  yet  he  may  be  entitled  to  an 
injunction  to  restrain  an  extension  of  such  business,  causing  more 
noise  and  vibration,  it  being  declared  that  such  acquiescence  only 
extends  to  the  business  as  conducted  in  the  past.75  And  a  court 
of  equity  will  prevent  a  substantial  violation  of  a  building  restric- 
tion by  a  person  though  the  complainant  may  have  been  guilty  of 
some  unsubstantial  violation  on  his  part.76 

§  488a.  Same  subject;  where  complainant  has  violated  restric- 
tion.— An  injunction  will  not  be  granted  to  the  owner  of  land  to 
prevent  a  violation  of  a  building  restriction  by  the  owner  of  ad- 
joining land,  where  the  property  of  bo'th  is  subject  to  the  same 
restriction  and  the  complainant  has  himself  violated  it.77  Su  where 
in  a  proceeding  to  obtain  an  injunction  for  violation  of  a  restric- 
tion as  to  buildings  projecting  over  a  building  line,  it  appears  that 
both  parties  have  violated  the  restriction,  the  court  will  not  compel 

out  of  his  side  windows  to  see  the  no  such  laches.     See,  also.  Water  Lot 

erections  in  the  yard,  and  the  back  Company  v.    Bucks,   5   Ga.   315.     In 

window     on     Chestnut     street     was  Orne     v.     Fridenberg.     supra,     there 

plainly  before   him  every  day  as  he  would    seem    to    have    been    an    ac- 

entered  and  left  his  own  store.    .    .  .  quiescence    in    the    breach    for    more 

Where,    therefore,    plaintiff    lies    by   ,   than  twenty  years.     In  Peek  v.  Mat- 

for  a  period  of  four  or  five  months  thews,   L.   R.  3   Eq.  515,   an  injunc- 

permitting  defendants  to  go  on  with  tion  was  denied  to  prevent  a  breach 

their   erections    in    disregard    of    the  by    one    purchaser,     because   similar 

covenant,  he  will  be  denied  relief  by  breaches    by    other    purchasers    had 

injunction;    and   where    a  vendor   of  been  acquiesced  in. 

real  property  takes  from  each  of  sev-  74.  Lattimer  v.  Livermore,  72  N. 

eral    purchasers   a   covenant  that  he  Y.   174,   180;   Western  v.  McDermot, 

will   leave  unbuilt  a  certain  portion  L.  R.  1  Eq.  499. 

of  the  premises  conveyed,  he  will  not  75.  Leaver     v.     Gorman      (N.     J. 

be   permitted   to  enjoin  a  breach   of  1907),   67    Atl.    111. 

this  covenant  by  one  of  the  purchas-  76.  Adams   v.   Howell,    108   N.  Y. 

ers,   when    he    has    permitted   prior  Supp.  945,  citing  McGuire  v.  Caskey, 

purchasers  to  violate  it,  without  tak-  02  Ohio  St.  419,  57  N.  E.  53. 

ing  proceedings  against  them."  Clark  77.  Alvord    v.    Fletcher,   28    App. 

v.  Martin,  49  Pa.  St.  289,  is  cited  by  Div.  (N.  Y.)  493,  51  N.  Y.  Supp.  117. 

the  court  as  a  case  where  there  was 

738 


Relating  to  Restrictive  Covenants.  §  489 

the  defendant  to  move  or  alter  his  building  at  the  instance  of  the 
plaintiff.78  And  where  under  a  building  restriction  in  a  deed  a  lot 
enjoys  the  privilege  of  light  and  air  from  a  second  lot,  and  the 
owner  of  the  first  lot  erects  a  solid  division  wall  cutting  himself 
off  from  light  and  air  and  maintains  such  a  wall  for  a  long  period 
of  years,  he  cannot  enjoin  the  owner  of  the  second  lot  from  erecting 
a  building  to  the  height  of  such  wall.79 

§  489.  Vague  and  uncertain  general  covenants. — As  before 
seen,  a  contract  or  covenant  will  not  be  enforced  by  injunction,  if 
it  is  vague  or  uncertain  in  its  terms  and  purpose.80  And  if  so 
enforced  at  all,  it  will  be  enforced  in  its  spirit,  and  not  merely 
according  to  its  letter.81  And  a;  court  of  equity  will  not  assume 
that  the  defendant  intends  to  build  in  breach  of  his  covenant, 
where  he  disclaims  such  an  intention,  and  the  incomplete  structure 
is  not  necessarily  inconsistent  with  the  covenant.82  And  a  court 
of  equity  will  not  allow  a  breach  of  covenant  to  be  made  out  by 
means  of  an  arbitrary  construction  of  it.  Thus  where  a  covenant 
prohibits  the  erection  of  a  forge  or  furnace  for  the  "  manufactur- 
ing of  iron,"  the  covenantor  will  not  be  enjoined  from  the  erec- 
tion of  a  building  in  which  forges  are  intended  to  be  used  for  the 
heating  of  iron,  and  the  working  it  into  different  kinds  of  articles, 
to  be  used  in  the  construction  of  engines.83     And  where  a  certain 

78.  Scollard  v.  Nourvile,  181  Mass.  82.  Grenell  v.  Stillwell,  14  N.  Y. 
412,  G3  N.  E.  941.  Supp.  2G2.     In  this  case  it  was  held 

79.  Laudell  v.  Hamilton,  177  Pa.  that  an  injunction  against  the  erec- 
St.   23,   35   Atl.   242.  lion   of  a   tenement-house  would   not 

80.  Sections  433,  444,  ante.  In  lie  against  defendant,  as  her  own  and 
Low  v.  Innes,  10  Jur.  N.  S.  1037,  the  her  architect's  affidavits  were  that 
chancellor  said:  "It  is  scarcely  pos-  she  was  building  a  private  residence 
sihle  to  ascertain  the  meaning  of  the  for  herself.  And  see  Foster  v.  Bir- 
vvords,  '  occupy  the  sight  of  ancient  mingham  R.  Co.,  2  Weekly  Rep.  378. 
lights.'  How  can  windows  erected  in  And  where  the  defendant  denies  that 
a  new  wall  be  said  to  occupy  the  site  complainant's  apprehensions  are  well 
of  windows  in  a  wall  that  has  been  founded,  his  application  for  an  in- 
pulled  down?  I  advert  to  it  only  junction  will  be  denied,  unless  he 
for  the  purpose  of  showing  to  plain-  makes  out  a  very  clear  case  by  his 
tifT  how  difficult  it  would  be  to  en-  bill  and  affidavits.  Rogers  v.  Dan- 
force  a  covenant  so  worded."  forth.  9  N.  J.  Eq.  289. 

81.  Manners  v.  Johnson,  L.  R.  1  83.  Rogers  v.  Danforth,  9  N.  J. 
Ch.  D.  673.  Eq.  289. 

739 


§§  489a,  490       Relating  to  Restrictive  Covenants. 

site  on  a  vendor's  map  was  designated  as  a  chapel,  it  was  held 
that  this  did  not  constitute  an  implied  covenant  that  no  other 
than  a  building  for  religious  purposes  should  be  erected  there, 
unless  so  to  build  would  abridge  a  purchaser's  easement.84  And 
under  a  covenant  expressed  in  general  terms,  for  instance  a  cove- 
nant for  quiet  enjoyment,  the  covenantor  will  not  be  enjoined  from 
doing  a  particular  act,  unless  the  complainant  shows  that  his  enjoy- 
ment will  be  thereby  impaired,  and  he  will  be  appreciably  in- 
jured.85 

§  489a.  Need  not  be  substantial  injury. — A  breach  of  a  cove- 
nant in  a  deed  or  lease  may  be  enjoined  though  it  does  not  appear 
that  there  is  any  irreparable,  or  even  substantial  injury  therefrom.88 
In  a  case  in  New  Jersey  it  is  declared  in  this  connection  that  the 
court  will  not  refuse  to  restrain  the  violation  of  a  covenant  because 
the  inconvenience  resulting  to  the  complainant  will  be  slight,  but 
that  it  must  be  clear  that  there  is  no  appreciable,  or  at  all  events, 
no  substantial  damage  from  the  breach,  before  the  court  will  upon 
the  ground  of  smallness  of  damage,  withhold  its  hand  from  enforc- 
ing execution.87 

§  490.  Present  and  reversionary  interests. — A  court  of  equity 
will  not  interfere  by  injunction  to  protect  reversionary  interests  in 
land  from  waste,  by  a  tenant  in  possession,  unless  it  is  shown  that 
he  is  injuring  the  premises  by  acts  which  are  repugnant  to  the 

84.  Johnson  v.  Shelter  Island  the  enjoyment  of  the  premises  if 
Assn.,  122  N.  Y.  330,  25  N.  E.  484.  neither  he  nor  they  sustain  any  in- 

85.  In  Ingram  v.  Morecraft,  33  jury,  and  if  you  do  not  show  any 
Beav.  49,  the  Master  of  the  Rolls  damage,  you  have  no  right  to  the 
said:      "It  is  no  doubt  true  that  if  interposition  of  this  court." 

a  man  enter  into  a  covenant  to  do  a  86.  Steward  v.   Winters,   4   Sandf. 

particular  thing,  however  absurd,  the  Ch.    (N.  Y. )    587;   Beckwith  v.  How- 

covenantee     is     entitled    to   have   the  ard,  6  R.  I.  1 ;  Everly  v.  Driskill.  24 

covenant   performed;    but  here   there  Tex.   Civ.  App.  413,  58  S.   W.   1046; 

is  no  covenant  not  to  put  stones  in  Anderson   v.    Rowland,    18   Tex.    Civ. 

the  brook.     The  argument  is  founded  App.  460,  44  S.  W.   911. 

solely  on  the  covenant  for  quiet  en-  87.  Kirkpatrick  v.  Peshine,  24  N. 

joyment,    and    it    ia    said    that    the  J.  Eq.  206. 
words  are  express,  that  he  shall  have 

740 


Relating  to  Restrictive  Covenants.  §  491 

lease.  Thus  a  tenant  will  not  be  enjoined  from  cutting  timber  on 
demised  land  for  purposes  authorized  by  his  lease.8S  In  a  case 
resting  simply  on  covenant,  if  the  party  seeking  specific  perform- 
ance be  entitled  to  possession,  he  has  a  right  to  the  enjoyment  of 
the  property,  according  to  the  covenant;  but  if  he  be  entitled  in 
remainder  only,  he  must  show  some  material  damage  by  reason 
of  the  breach.89 

§  491.  Penalty  and  liquidated  damages. — Where  to  a  covenant 
to  do  or  not  to  do  a  particular  act  is  annexed  a  penalty,  this  does 
not  of  itself  give  to  the  covenantor  the  option  to  perform  or  pay 
the  penalty.  He  is  bound  to  perform  unless  it  appear  from  the 
particular  language,  construed  in  the  light  of  the  surrounding  cir- 
cumstances, that  it  was  the  intention  of  the  parties  to  make  the 
penalty  the  price  of  non-performance,  to  be  accepted  by  the  cove- 
nantee in  lieu  thereof.90  Where  a  sum  has  been  specified  as  a 
penalty  to  insure  the  performance  of  the  covenant,  the  payment  of 
the  penalty  will  not  prevent  the  enforcement  of  the  covenant  by  a 
court  of  equity;91  hut  such  injunctive  relief  will  not  be  granted 

88.  McDaniel  v.  Callan,  75  Ala.  would  be  granted,  though  the  plain- 
327;  Parkman  v.  Aicardi,  34  Ala.  tiffs  were  entitled  only  in  remainder. 
393.  90.  Phoenix     Ins.    Co.     v.     Conti- 

89.  Johnstone   v.   Hall,   2    Kay   &  nental  Ins.  Co.,  87  N.  Y.  400. 

J.    414.      In    this   ease   there   was    a  91.  Diamond  Match  Co.  v.  Roeber, 

covenant  by   lessee  not  to  carry  on  106   N.   Y.   473,  486,    13   N.    E.   419, 

any   noxious    trade,    but   to   use    the  per  Andrews,  J. :     "  We  are  of  opin- 

premises  solely  for  private  dwellings.  ion  that  the  equitable  jurisdiction  of 

The   lessor   died,   having  devised   the  the  court  to  enforce  the  covenant  by 

leased  premises  to  one  for  life,  and  to  injunction   was   not  excluded   by   the 

plaintiffs    in    remainder.      Defendant  fact    that   the   defendant   executed   a 

as  sublessee,  conducted  on  the  prem-  bond    for    its    performance,    with    a 

ises  a  school  for  girls.    A  bill  for  in-  stipulation    for    liquidated    damages, 

junction,    while    the   tenant   for    life  It  is  of  course  competent  for  parties 

was    alive,    was    dismissed    on    the  to  a  covenant  to  agree  that  a  fixed 

ground  that  the  plaintiffs  were  in  re-  sum  shall  be  paid  in  case  of  a  breach 

mainder,   and   there  was   no  case  of  by  the  party  in  default,  and  that  this 

waste,  but  only  a  possibility  of  the  should  be  the  exclusive  remedy.     The 

respectability  of  the  neighborhood  be-  intention  in  that  case  would  be  man- 

ing   in  some  measure  affected.     Bu^  ifest  that  the  payment  of  the  penalty 

it   was   said   obiter  that   in   a  gross  should  be  the  price  of  non-perform 

case  of  a  noxious  trade  an  injunction  ance,  and  to  be  accepted  by  the  cove- 

741 


§492 


Relating  to  Restrictive  Covenants. 


where  it  was  the  intention  of  the  parties  that  the  covenantor  might 
have  the  alternative  of  performing  the  particular  act,  or  paying 
the  specified  sum.92 

§  492.  Same  subject  illustrated. — Where,  in  a  conveyance,  the 
grantee  covenanted  not  to  erect  any  building  on  a  certain  specified 
part  of  the  premises  conveyed,  which  adjoined  the  remaining  land 
of  the  grantor,  and  then  for  a  violation  of  the  covenant,  bound  him- 
self and  his  assigns  to  pay  the  grantor,  his  heirs  or  assigns,  a 
specified  sum  as  liquidated  damages,  it  was  held  that  both  from 


nantee  in  lieu  of  performance.  Phoe- 
nix Ins.  Co.  v.  Continental  Ins.  Co., 
87  N.  Y.  400,  405.  But  the  taking 
of  a  bond  in  connection  with  a  cove- 
nant does  not  exclude  the  jurisdic- 
tion of  equity  in  a  case  otherwise 
cognizable  therein,  and  the  fact  that 
the  damages  in  the  bond  are  liqui- 
dated, does  not  change  the  rule.  It 
is  a  question  of  intention,  to  be  de- 
duced from  the  whole  instrument  and 
the  circumstances;  and  if  it  appear 
that  the  performance  of  the  covenant 
was  intended,  and  not  merely  the 
payment  of  damages  in  case  of  a 
breach,  the  covenant  will  be  enforced. 
It  was  said  in  Long  v.  Bowring,  33 
Beav.  585,  which  was  an  action  in 
equity  for  the  specific  performance  of 
a  covenant,  there  being  also  a  clause 
for  liquidated  damages,  'all  that  is 
settled  by  this  clause  is  that  if  they 
bring  an  action  for  damages,  the 
amount  to  be  recovered  is  £1,000, 
neither  more  nor  less.'  There  can  be 
no  doubt  upon  the  circumstances  in 
this  case,  that  the  parties  intended 
that  the  covenant  should  be  per- 
formed, and  not  that  the  defendant 
might,  at  Ins  option,  repurchase  his 
right  to  manufacture  and  sell 
matches  on  payment  of  the  liquidated 
damages.  The  right  to  relief  by  in- 
junction in  similar  contracts  is  es- 
tablished by  numerous  cases."    How- 


ard v.  Woodward,  10  Jur.  N.  S.  1123 
Coles  v.  Sims,  5  DeG.,  McN.  &  G.  1 
Avery  v.  Langford,  Kay's  Ch.  663 
Whittaker  v.  Howe,  3  Beav.  383 
Hubbard  v.  Miller.  27  Mich.  15 
French  v.  Mocale,  2  Dr.  &  W.  269 
Fox  v.  Scard,  33  Beav.  327. 

92.  Dills  v.  Doebler,  62  Conn.  366, 
26  Atl.  398,  per  Andrews,  C.  J.: 
"  When  the  parties  to  an  agreement 
have  put  into  a  provision  for  the 
payment,  in  case  of  a  breach,  of  a 
certain  sum  of  money,  and  not  a  pen- 
alty; in  other  words,  when  the  con- 
tract stipulates  for  one  of  two  things 
in  the  alternative,  or  on  the  one  side, 
the  doing  or  the  not  doing  of  certain 
acts,  and  on  the  other  the  payment 
of  a  certain  sum  of  money  in  lien 
thereof,  equity  will  not  interfere,  but 
will  leave  the  party  to  his  remedy  of 
damages  at  law.  Shiell  v.  McNitt,  9 
Paige,  101;  Skinner  v.  Dayton,  2 
Johns.  Ch.  526,  535.  The  case  turns 
on  the  construction  to  be  given  to 
the  contract."  See,  also,  National 
Prov.  Bank  v.  Marshall,  L.  R.  40  Ch. 
D.  112;  London,  etc.,  Bank  v.  Pritt, 
56  L.  J.  Ch.  (N.  S.)  987;  Howard  v. 
Woodward,  10  Jur.  N.  S.  1123;  Slo- 
man  v.  Walter,  1  Brown,  C.  C.  418; 
Bray  v.  Fogarty,  I.  R.  4  Eq.  544; 
Howard  v.  Hopkyns,  2  Atk.  371; 
Hardy  v.  Martin,  1  Cox,  Ch.  26. 


742 


Relating  to  Restbictive  Covenants. 


§492 


the  covenant  itself  and  tfoo  surrounding  circumstances,  it  was 
apparent  that  the  primary  intent  was  to  have  the  covenant  per- 
formed, and  thus  to  secure,  in  performance,  an  open  space  for  the 
benefit  of  the  premises  not  conveyed,  and  that,  therefore,  the  cove- 
nant could  be  enforced  by  injunction;  and  also  that  the  right  to 
enforce  it  passed  to  a  subsequent  grantee  of  the  dominant  premises, 
and,  indeed,  that  such  a  covenant,  both  in  respect  to  the  burden  and 
benefit,  follows  the  respective  parcels  of  land  through  all  devolu- 
tions of  title.93    If  the  covenantee  sues  for  and  recovers  a  sum  by 


93.  Phoenix  Ins.  Co.  v.  Continen- 
tal Ins.  Co.,  87  N.  Y.  400,  per  An- 
drews, C.  J. :  "  It  was  stated  by 
Lord  Hardwicke,  in  Howard  v.  Hop- 
kyns,  2  Atk.  371,  that  'in  all  cases 
where  penalties  are  inserted  in  an 
agreement  in  a  case  of  non-perform- 
ance, this  has  never  been  held  to 
release  the  parties  from  their  agree- 
ment, but  they  must  perform  it  not- 
withstanding.' Tliat  was  the  case  of 
a  bill  filed  by  a  vendee,  for  the  spe- 
cific performance  of  articles  for  the 
purchase  of  an  estate,  which  provided 
that  if  either  party  should  break  the 
agreement,  he  should  pay  £100  to  the 
other,  and  specific  performance  was 
decreed,  against  the  objection  of  the 
defendant,  that  he  was  entitled  to  be 
discharged  from  the  contract  on  pay- 
ment of  the  £100.  The  rule  deduced 
from  the  authorities  is,  that  when 
there  is  a  covenant  to  do,  or  not  to 
do,  a  particular  act  under  a  penalty, 
the  covenantor  i3  bound  to  do,  or  re- 
frain from  doing,  the  very  thing,  un- 
less it  appears  •from  the  particular 
language,  construed  in  the  light  of 
the  surrounding  circumstances,  that 
it  was  the  intention  of  the  parties 
that  the  payment  of  the  penalty 
should  be  the  price  of  non-perform- 
ance, and  to  be  accepted  by  the  cove- 
nantee, in  lieu  of  performance.    Chil- 


liner  v.  Chilliner,  2  Ves.  Sr.  528; 
French  v.  Macale,  2  Dr.  &  W.  269, 
and  cases  cited;  Gray  v.  Crosby,  18 
Johns.  219.  The  question  to  be  con- 
sidered is,  what  was  the  primary  in- 
tent of  the  agreement?  If  the  pri- 
mary intent  was  that  the  covenant 
should  be  performed,  the  annexing 
of  a  penalty  is  regarded  merely  as 
security  for  the  performance  of  the 
covenant,  and  not  as  a  substitute  for 
it.  The  point  is  very  cleaily  put  by 
Lord  Chancellor  Sugden,  in  French 
v.  Macale,  2  Dr.  &  W.  269.  He  says: 
'  The  question  for  the  court  to  ascer- 
tain is,  whether  the  party  is  re- 
stricted by  covenant  from  doing  the 
particular  act,  although  if  he  do  it  a 
payment  is  reserved;  or  whether,  ac- 
cording to  the  true  construction  of 
the  contract,  its  meaning  is,  that  the 
one  party  shall  have  a  right  to  do 
the  act  on  payment  of  what  is  agreed 
upon  as  an  equivalent.'  It  is  un- 
doubtedly true  that  the  presence  of 
prohibitory  or  mandatory  words  in 
the  covenant,  followed  by  a  penalty, 
is  not  conclusive  against  construing 
the  penalty,  as  an  alternative  given 
to  the  covenantor  for  non-perform- 
ance. In  determining  whether,  by  the 
true  construction  of  a  covenant,  the 
penalty  is  the  price  of  the  privilege 
of  non-performance,  the  fact  that  the 


743 


493 


Kelating  to  Restrictive  Covenants. 


way  of  liquidated  damages,  the  court  will  thereafter  ordinarily 
refuse  him  an  injunction.94  And  an  injunction  was  denied  as 
against  a  lessee  who  had  covenanted  that  he  would  not  plow  pasture 
land,  but  that  if  he  did  he  would  pay  a  specified  sum  for  every 
acre  he  plowed.95 

§  493.  Same  subject;  construction  of  covenant. — The  fact  that 
a  restrictive  covenant  in  a  conveyance  follows  the  habendum  clause, 
and  that  other  covenants,  deemed  to  be,  conditions,  precede  such 
clause,  is  not  material  in  determining  whether  such  covenant  was 
intended  to  be  absolute  or  alternative  in  respect  to  its  perform- 
ance.96 And  an  absolute  covenant,  in  a  deed  not  to  do  an  act  will 
not,  in  the  absence  of  a  bill  to  rectify  the  deed,  be  controlled  by  a 
recital  in  the  deed,  from  which  it  appears  that  the  parties  intended 
that  such  act  might  be  done  on  payment  of  a  fixed  sum  for  liqui- 
dated damages.97 


contract  liquidates  the  damages  for 
a  breach,  may  be  considered,  but  it  is 
not  a  decisive,  nor  do  we  regard  it  as 
a  very  material  circumstance.  If  the 
primary  intention  was  that  the  very 
thing  covenanted  should  be  done, 
then  the  sum  named  is  in  the  nature 
of  a  penalty  to  secure  the  perform- 
ance of  the  principal  thing;  and  it 
can  make  no  difference  in  the  con- 
struction of  the  covenant  whether 
damages  for  non-performance  are  left 
to  be  ascertained  by  an  issue  quan- 
tum   damnificatus,    or     the    parties 


themselves  conclusively  settle  the 
amount.  Coles  v.  Sims,  5  DeG.,  M. 
&  G.  1 ;  Long  v.  Bowring,  33  Beav. 
585;  Clark  v.  Jones,  1  Denio,  516." 

94.  Sainter  v.  Ferguson,  i  Macn. 
&  G.  286;  Carnes  v.  Nisbett,  7  Hurl. 
&  N.  158,  778. 

95.  Rolfe  v.  Peterson,  2  Brown,  P. 
C.  436;  Woodward  v.  Gyles,  2  Vera. 
119. 

96.  Phoenix  Ins.  Co.  v.  Continen- 
tal Ins.  Co.,  87  N.  Y.  400. 

97.  Bird  v.  Lake,  1  Hem.  &  M.  111. 


744 


Relating  to  Bonds  and  Notes.  §  494 


CHAPTER  XVI. 

Relating  to  Bonds  and  Notes. 

Section  494.  As  to  instrument  valid  on  its  face. 

495.  Enjoining  collection  or  transfer  for  fraud. 

496.  Same  subject. 

497.  Enjoining  transfer  of  note. 

498.  Same  subject. 

498a.  Same  subject — Adequate  remedy  at  law. 

499.  Enjoining  action  on  note  obtained  by  fraud. 

600.  Enjoining  action  on  note  for  failure  of  consideration. 

501.  Set  off — Insolvency. 

502.  Enjoining  defense  of  coverture  to  wife's  note. 

503.  As  against  subsequent  holder. 

Section  494.  As  to  instrument  valid  on  its  face. — An  injunc- 
tion lies  to  protect  a  plaintiff  against  an  invalid  contract  in  the 
possession  of  a  defendant  when  the  invalidity  is  not  apparent  on 
the  face  of  the  instrument  and  when  there  is  danger  that  the  evi- 
dence to  support  a  defense  to  it  in  a  court  of  law  may  be  lost  by  the 
delay  of  the  adverse  party  to  prosecute  his  claim.1  Thus,  where 
a  bond  was  good  on  its  face;  but  had  been  held  by  defendant  for 
twenty-seven  years,  and  he  admitted  that  it  was  given  on  a  trust 
which  he  ought  not  to  disclose,  and  depended  on  a  contingency 
which  had  not  happened  but  might  possibly  happen,  the  court 
ordered  the  bond  to  be  delivered  up  and  canceled.2  So,  where  a 
draft  was  drawn  as  a  loan  by  the  drawer  and  the  consideration  of 
its  acceptance  has  wholly  failed  and  the  person  for  whose  benefit 
it  was  drawn  and  who  holds  it  had  actual  notice  of  all  the  equities 
which  attached  to  it,  the  drawer  is  entitled  to  have  the  suit  for  its 
collection  enjoined  and  to  have  it  canceled.3     In  England  the 

1.  Anthony  v.  Valentine,  130  3.  Ferguson  v.  Fisk,  28  Conn.  501, 
Mass.  119,  120;  Metier  v.  Metier,  18  per  Sanford,  J.:  "The  draft  though 
N.  J.  Eq.  270.  See,  also,  Paterson  v.  overdue  is  still  transferable;  no  fa- 
Baker,  51  N.  J.  Eq.  49,  26  Atl.  324.  tal    infirmity    is    apparent    upon    its 

2.  Hamilton  v.  Cummings,  1  face;  the  pending  suit  upon  it  may 
Johns.  Ch.   (N.  Y.)   517.  be  withdrawn  and  another  instituted, 

745 


§495 


Relating  to  Bonds  and  Notes. 


earlier  decisions  were  somewhat  contradictory,  but  the  weight  of 
authority  seemed  to  b&  that  a  court  of  equity  might  direct  invalid 
instruments  to  be  delivered  up,  though  tluy  might  also  be  void 
at  law.4  But  where  plaintiff  has,  without  consideration,  given  the 
defendant  his  note  and  the  defendant  has  begun  an  action  to  col- 
lect it,  a  bill  for  an  injunction  to  restrain  the  prosecution  of  the 
action  and  praying  that  the  note  be  surrendered  to  the  plaintiff, 
for  want  of  consideration,  is  demurrable  because  it  states  a  defense 
which  is  as  available  in  the  pending  suit  at  law  as  in  the  suit  in 
equity.5 

§  495.  Enjoining  collection  or  transfer  for  fraud. — In  an  eany 
case  in  the  United  States  Supreme  Court  it  is  determined  that  a 
court  of  equity  will  interpose  by  injunction  to  prevent  the  transfer 
of  negotiable  securities  and  stocks  which,  if  transferred,  will  be 
irretrievably  lost  to  the  owner.6  And  a  court  of  equity  will  grant 
an  injunction  to  restrain  one  who  has  fraudulently  obtained  pos- 
session of  stocks  or  other  negotiable  securities  or  paper  from  trans- 


cither  against  the  acceptor  or  the 
drawer.  .  .  .  Strangers  may  be 
defrauded  by  it  and  the  petitioner 
may  be  repeatedly  harrassed  by  an 
outstanding  claim,  which  upon  every 
principle  of  equity  ought  to  be  de- 
feated. We  entertain  no  doubt  of 
the  jurisdiction  of  a  court  of  equity 
to  afford  to  the  petitioner  the  relief 
for  which  he  seeks,  and  we  think 
this  record  exhibits  in  a  striking 
light  the  necessity  for  such  a  juris- 
diction and  the  fitness  of  its  exer- 
cise in  the  case  before  us.  Peirsoll  v. 
Elliott,  6  Pet.  (U.  S.)  95,  8  L.  Ed. 
332;  New  London  Bank  v.  Lee,  11 
Conn.  120;  Chipman  v.  Hartford,  21 
Conn.  489;  Boyce  v.  Grundy,  3  Pet. 
(U.  S.)  215,  7  L.  Ed.  655. 

4.  Jackman  v.  Mitchell,  13  Ves. 
581;  Bromley  v.  Holland,  7  Ves.  3; 
Newman  v.  Milncr,  2  Ves.  Jun.  483; 


Minshaw  v.  Jordan,  3  Bro.  17,  n. 
But  see  Ryan  v.  Mackmath,  3  Bro. 
i5;  Franco  v.  Bolton,  3  Ves.  368; 
Cray  v.  Mathias,  5  Ves.  286.  In  Law 
v.  Law,  3  P.  Wms.  391,  Lord  Talbot 
ordered  a  bond  which  was  void  at 
law  as  well  as  in  equity  to  be  can- 
celed without  sending  the  parties  to 
law.  In  Wliittingham  v.  Thorn- 
burgh,  2  Vera.  206;  Goddard  v.  Gar- 
rett, 2  Vera.  269;  and  DeCosta  v. 
Scandret,  2  P.  Wms.  170,  policies  of 
insurance  procured  by  fraud  were  or- 
dered to  be  delivered  up  and  can- 
celed, though  the  fraud  was  equally 
a  defense  at  law. 

5.  Anthony  v.  Valentine,  130 
Mass.  119;  Slade  v.  Hood,  13  Gray 
(Mass.),  97;  Corlies  v.  Howe,  11 
Gray    (Mass.),  125. 

6.  Osborn  v.  United  States  Bank, 
9  Wheat.  (U.  S.)  738,  6  L.  Ed.  204. 


74G 


Relating  to  Bonds  and  Notes. 


§495 


ferring  the  3ame  in  violation  of  the  rights  of  the  owner.7  So  in  a 
case  in  New  York  it  is  declared  that  equity  will  interfere  to  con- 
trol the  action  of  parties  and  restrain  them  from  transferring 
negotiable  obligations,  on  the  ground  that  it  is  against  conscience 
to  allow  them  to  create  in  their  transferee  a  right  of  equity  which 
they  themselves  do  not  possess.8  So  where  State  agents,  by  an 
unauthorized  contract,  sold  its  bonds  or  certificates  of  stock  on 
credit  to  an  irresponsible  purchaser  chargeable  with  notice  of  the 
agent's  want  of  authority,  it  was  held  that  the  securities  Ix  ing 
negotiable,  so  as  to  render  them  valid  in  the  hands  of  a  hona  fide 
holder,  the  State  was  entitled  to  an  injunction  restraining  the 
purchaser  from  transferring  them.9  And  where  the  electors  of  a 
city  or  town  have  been  induced  to  vote  for  an  issue  of  bonds  in 
aid  of  a  railroad  by  means  of  fraudulent  representations  made  by 
the  railroad  company,  an  injunction  will  lie  to  prevent  the  collec- 
tion of  the  bonds ;  it  being  held  that  in  such  cases  the  electors  are 
entitled  to  stand  on  the  very  letter  of  their  promise.10     But  the 


7.  United  States. — Hower  v. 
Weiss  Malting  &  E.  Co.,  55  Fed.  356, 
5  C.  C.  A.  129. 

Georgia. — Wilcox  v.  Ryals,  110  Ga. 
287,  34  S.  E.  575. 

Indiana. — Burns  v.  Weesner,  134 
Ind.  442,  34  N.  E.  10. 

Massachusetts. — Sears  v.  Carrier, 
4  Allen,  339. 

Nebraska. — Reynolds  v.  Touzalin 
Imp.  Co.,  62  Neb.  236,  87  N.  W.  24. 

Nevada. — Sierra  Nevada  Min.  Co. 
v.  Sears,  10  Nev.  346. 

Vermont. — Chase  v.  Torrey,  20  Vt. 
395. 

Virginia. — Dickenson  v.  Bankers 
Loan  &  T.  Co.,  93  Va.  498,  25  S.  E. 
548. 

8.  Town  of  Venice  v.  Woodruff,  62 
N.  Y.  462,  20  Am.  Rep.  495.  Per 
Rapallo,  J. 

9.  D?lafield  v.  State,  2  Hill  (N. 
Y.),  159. 

10.  Nash  v.   Baker,  37  Neb.  713, 


56  N.  W.  376,  per  Ryan,  J.:  "In 
Wullenwaber  v.  Dunigan,  30  Neb. 
877,  47  N.  W.  420,  it  was  held,  where 
certain  petitioners  were  induced  to 
sign  a  petition  calling  an  election  in 
K.  township,  Seward  county,  upon 
the  representations  of  an  agent  of  the 
railway  company  that  the  depot 
would  be  located  on  section  16  of 
said  township,  when  in  fact  the  de- 
pot was  afterwards  located  on  sec- 
tion 17,  that  the  company  was  bound 
by  the  representations  of  its  agent, 
and  that  the  persons  who  had  been 
deceived  thereby,  and  induced  to  sign 
the  petition,  might  set  up  such  facts 
to  enjoin  the  issuing  of  the  bonds. 
In  the  opinion  rendered  by  Maxwell, 
J.,  occurs  the  following  apposit>  lan- 
guage: 'A  proposition  to  vote  bonds 
is  in  the  nature  of  a  contract,  which, 
when  accepted,  is  binding  upon  the 
respective  parties.  Hence  if  the 
electors,  through  false  or  fraudulent 


747 


§496 


Relating  to  Bonds  and  Notes. 


assignment  of  a  fraudulent  attachment  bond  will  not  ordinarily 
be  enjoined,  since  the  fraud  would  be  a  good  defense  to  an  action 
at  law  on  the  bond.11 

§  496.  Same  subject. — Where  the  electors  of  a  township  voted 
to  aid  a  railroad  company  to  build  a  railroad  through  the  town- 
ship and  authorized  the  supervisors  on  the  completion  of  the  road 
to  issue  township  bonds  and  deliver  them  to  the  company,  it  was 
held  that  as  no  part  of  the  road  was  built  by  the  company  in  the 
township,  the  electors  were  entitled  to  enjoin  the  supervisors  from 
delivering  the  bonds  to  the  company;  and  also  were  entitled  to 
stand  on  the  very  letter  of  their  promise  and  enjoin  the  delivery 
of  the  bonds  to  the  vendee  of  the  railroad  company  by  which  the 
Toad  had  actually  been  constructed,  as  the  electors  had  not  desig- 
nated such  vendee  as  the  donee  of  the  bonds.12  And  where  plaintiff 
and  others  deposited  the  bonds  of  a  railroad  company  with  defend- 


representations,  have  been  induced  to 
vote  bonds  to  aid  in  the  construction 
of  such  railway,  a  court  of  equity  in 
a  proper  case  will  grant  relief. 
Curry  v.  Decatur  Co.,  61  Iowa,  71,  15 
N.  W.  602;  Sinnett  v.  Moles,  38 
Iowa,  25;  Henderson  v.  Railroad  Co., 
67  Am.  Dec.  675;  Crump  v.  Mining 
Co.,  56  Am.  Dec.  116;  Wickham  v. 
Grant,  28  Kan.  517.'  In  an  opinion 
of  this  court,  in  Township  of  Midland 
v.  County  Board,  37  Neb.  582,  56  N. 
W.  317,  it  has  been  held  that  the 
electors  of  a  township  are  entitled  to 
stand  upon  the  very  letter  of  their 
promise;  a  wholesome  rule,  which 
should  be  extended  to  the  facts  under 
consideration." 

11.  Elder  v.  Shaw,  12  Nev.  78. 
See  Penn  v.  Ingles,  82  Va.  65. 

12.  Township  of  Midland  v. 
County  Board,  37  Neb.  582,  56  N.  W. 
317,  per  Ragan,  C:  "The  township 
electors  designated  the  donee  and 
only  the  one  designated  can  take  the 
donation.     The  electors  did  not  au- 


thorize the  supervisors  to  deliver  the 
bonds  voted  to  the  railroad  company 
or  its  vendee,  and  had  they,  it  would 
have  been  ineffectual  and  the  bonds 
invalid.  Jones  v.  Hurlburt,  13  Neb. 
125,  13  N.  W.  5;  Spurck  v.  Lincoln 
&  N.  W.  R.  Co.,  14  Neb.  293,  15  N. 
W.  701;  State  v.  Roggen,  22  Neb. 
118,  34  N.  W.  108.  The  most  that 
can  be  said  for  the  appellee  is  that 
the  electors  of  this  township  au- 
thorized their  agents,  the  board  of 
supervisors  and  the  county  clerk  of 
Gage  county,  to  issue  the  bonds  of 
said  Midland  township,  and  deliver 
them  to  the  railroad  company,  when 
it  had  built  a  certain  improvement. 
The  railroad  company  never  complied 
with  the  condition  coupled  with  the 
authority  given  by  the  township 
electors  to  its  agents.  The  vendee 
of  the  railroad  has  complied  with  the 
condition  to  build  the  improvement 
and  it  now  claims  these  agents  should 
deliver  the  bonds  to  it.  Authority 
from  a  principal  to  an  agent  to  do  a 


748 


Kelating  to  Bonds  and  Notes. 


§497 


ants  under  a  contract  by  which  defendants  were  to  hold  the  bonds 
as  security  for  the  expenses  of  reorganizing  the  company,  and  any 
bondowner  was  to  have  the  right  to  withdraw  his  bonds  on  paying 
his  proportionate  share  of  the  expenses  then  accrued,  it  was  held 
that  in  an  action  to  recover  bonds  so  deposited  plaintiff  was  entitled 
to  an  injunction  pendente  lite  against  the  sale  of  his  bonds.13  But 
where  a  State  constitution  permits  counties  to  donate  their  bonds, 
not  exceeding  a  certain  percentage  on  the  assessed  valuation,  to 
railroad  companies,  a  donation  in  excess  of  the  prescribed  per- 
centage is  wholly  void  and  the  bondholders  can  have  no  relief  from 
a  court  of  equity  on  the  theory  that  the  county  received  a  considera- 
tion in  the  construction  of  the  railroad  and  should,  therefore,  pay 
so  much  on  the  bonds  as  it  might  lawfully  have  donated.14 

§  497.  Enjoining  transfer  of  note. — So  long  as  a  promissory 
note  which  the  payee  has  obtained  by  means  of  fraud  or  force  is 
in  his  hands  he  may  be  enjoined  from  the  transfer  of  it,  and  in 
some  cases  from  the  collection  of  it.15    But  to  enjoin  the  maker  of 


specific  act  is  limited  to  that  act. 
State  v.  Commissioners  of  Nemaha 
Co.,  10  Kan.  569." 

13.  Kennedy  v.  Kennedy,  24  N. 
Y.  Supp.  424. 

14.  Hedges  v.  Dixon  County,  150 
U.  S.  182,  37  L.  Ed.  1044,  14  S.  Ct. 
71,  aff'g  37  Fed.  304,  and  distinguish- 
ing Louisiana  v.  Wood,  102  U.  S. 
294,  26  L.  Ed.  153;  Read  v.  Platts- 
mouth,  107  U.  S.  568,  27  L.  Ed.  414, 
2  S.  Ct.  208;  Daviess  Co.  v.  Dickin- 
son, 117  U.  S.  657,  29  L.  Ed.  1026,  6 
S.  Ct.  897. 

15.  Lyster  v.  Stickney,  12  Fed. 
609,  per  McCrary,  C.  J.:  "There 
was  an  injunction  allowed  against 
the  negotiation  of  these  notes  which 
were  negotiable  and  which  were  not 
due  at  the  time  the  original  bill  was 
filed  and  some  of  which  are  not  yet 
due.  After  the  amendments  the  bill 
stands  upon  its  face  a  good  bill  al- 


leging the  execution  of  these  instru- 
ments under  duress  and  a  threat  to 
take  the  life  of  complainant  if  he  did 
not  execute  them.  There  is  no  doubt 
that  any  contract  executed  under  a 
threat  to  take  the  life  of  the  party 
who  executes  it  is  utterly  void  and 
may  be  set  aside  on  the  application 
of  any  party  injured." 

In  James  v.  Roberts,  18  Ohio,  548, 
the  collection  of  a  note  was  enjoined, 
it  having  been  extorted  by  threats  of 
prosecution  for  perjury. 

In  Thurman  v.  Burt,  53  111.  129, 
the  plaintiff  sued  out  an  execution 
and  going  with  the  sheriff  threatened 
to  close  defendant's  store  unless  he 
settled  at  once;  to  avoid  the  threat- 
ened levy  the  defendant  gave  notes 
with  security  due  at  a  shorter  time 
than  that  fixed  for  the  stay  of  execu- 
tion; it  was  held  that  the  notes  were 


749 


49S 


Relating  to  Bonds  and  Notes. 


a  not©  from  paying  it  does  not  prevent  the  recovery  of  judgment 
upon  the  note.16  And  an  injunction  against  the  negotiation  of  a 
note  docs  not  destroy  its  negotiability.17  And  a  maker  of  a  note 
cannot  be  enjoined  from  paying  it  to  the  payee  unless  he  is  made 
a  defendant.18  But  one  who  has  received  a  note  in  good  faith  and 
for  a  valuaMe  consideration  will  not  be  enjoined  from  proceeding 
at  law  to  collect  it  on  the  ground  of  fraud  practiced  on  the  maker 
by  the  payee.19 

§  498.  Same  subject. — Where  an  insolvent  non-resident  owning 
a  life  estate  only  in  land  fraudulently  represents  to  his  grantee 
that  he  owns  it  in  fee  simple,  and  receives  in  cash  the  full  value 
of  the  life  estate,  such  grantor  will  be  enjoined  from  transferring 
the  unmatured  purchase  money  notes  to  an  innocent  third  person, 
though  the  grantee  be  in  possession  of  the  real  estate,  since  he  is 
entitled  to  such  possession  during  the  life  of  the  grantor.20     And 


extorted  by  the  improper  use  of  legal 
process  and  without  consideration, 
and  plaintiff  was  enjoined  from  as- 
signing them,  and  was  compelled  to 
abide  by  the  terms  of  bis  agreement 
as  to  stay  of  execution  under  which 
the  judgment  was  entered. 

The  collection  of  a  note  was  en- 
joined where  its  consideration  was 
the  fraudulent  sale  of  a  patent  right, 
Sackett  v.  Hillhouse,  5  Day  (Conn.), 
551;  Darst  v.  Brockway,  11  Ohio, 
462;  and  where  undue  influence  was 
practiced  on  the  maker  of  the  note, 
who  was  of  weak  mind  and  usually 
intoxicated,  Rembert  v.  Brown,  17 
Ala.  (567;  and  where  the  payee  pro- 
cured the  note  on  his  promise  to 
transfer  an  interest  in  letters  patent 
which  be  did  not  keep,  Robinson  v. 
Jefferson,  1  Del.  Ch.  244. 

S?e  section  495  herein. 

16.  Campbell  v.  Gilman,  26  111. 
120. 

17.  Winston  v.  Westfeldt,  22  Ala. 
760. 


18.  Fellows  v.  Fellows,  4  Johns. 
Ch.  (N.  Y.)  25.  See  Iveson  v.  Har- 
ris, 7  Ves.  257. 

19.  Dougherty  v.  Scudder,  17  N. 
J.  Eq.  248. 

20.  Burns  v.  Weesner,  134  Ind. 
442,  34  N.  E.  10,  per  CofTey,  C.  J.: 
"  If  it  be  true,  as  alleged  in  the  com- 
plaint and  admitted  by  the  demurrer, 
that  the  appellant  by  means  of  a 
fraud  practiced  on  him  by  Mrs. 
Brady,  was  induced  to  purchase  from 
her  the  fee  to  this  land,  when  in  fact 
she  owned  only  a  life  estate;  that  he 
has  fully  paid  her  for  the  life  estate; 
that  she  and  her  husband  are  non- 
residents, and  are  insolvent  so  that 
the  payment  of  any  further  sum  will 
be  a  total  loss  to  the  appellant,  he 
should  have  relief.  Before  he  is  re- 
quired to  pay  any  further  sum  equity 
and  good  conscience  require  that  he 
should  be  secured  against  loss,  and 
in  the  meantime  Mrs.  Brady  should 
be  enjoined  from  transferring  the 
notes     to     an     innocent     pxirchaser. 


750 


Relating  to  Bonds  and  Notes.  §  498a 

in  an  action  by  an  official*  and  creditors'  assignee  to  recover  the 
amount  of  a  note  from  the  maker,  the  bankrupt  payee  was  enjoined 
from  indorsing  the  note  to  any  other  than  such  assignee  and  from 
proceeding  at  law  against  the  maker  of  the  note.21  And  where  in 
an  adjustment  of  the  amounts  due  from  individual  partners  to  the 
firm  one  of  the  partners  gave  his  note  for  an  amount  greatly  in 
excess  of  what  he  owed  as  a  result  of  a  mutual  mistake,  it  was 
decided  that  a  court  of  equity  would  enjoin  the  negotiation  of 
such  note.22  Where  negotiable  securities  of  the  State  have  without 
authority  been  sold  to  an  irresponsible  purchaser,  the  State  is 
entitled  to  enjoin  him  from  transferring  them,  as  they  would  be 
valid  in  the  hands  of  a  holder  in  good  faith.23  Again,  it  is  decided 
that  an  injunction  cannot  be  allowed  restraining  a  defendant  from 
transferring  or  disposing  of  a  promissory  note  on  a  mere  claim  of 
indebtedness.  He  must  not  only  establish  a  legal  right  in  such  a 
case  but  must  show  the  issuing  and  return  of  an  execution 
unsatisfied.24 

§  498a.  Same  subject;  adequate  remedy  at  law. — Where  the 
maker  of  a  note  has  an  adequate  remedy  at  law  it  is  decided  that 
equity  will  not  enjoin  a  transfer  or  collection  of  such  note.25  And 
it  is  decided  that  a  court  of  equity  has  no  jurisdiction  to  enjoin 
the  transfer  of  a  note  on  the  ground  that  it  has  been  materially 
altered,  as  the  maker  has  an  adequate  remedy  at  law.26  And  where 
the  Code  provides  a  remedy  for  the  perpetuation  of  the  testimony 
of  witnesses  it  is  held  that  the  fact  that  a  party  is  apprehensive 

Crowfoot  v.  Zink,  30  Ind.  446;  Tras-  Swanst.  180;  Hood  v.  Aston,  1  Russ. 

ter  v.  Snelson,  29  Ind.  96;   Fehrle  v.  412;    Osborn  v.  United  States  Bank, 

Turner,    77    Ind.    530;    VVimberg    v.  9  Wheat.    (U.  S.)    738,  6  L.  Ed.  204. 

Schwegeman,  97  Ind.  528."  And    see    Hamilton    v.    Cummings,    1 

21.  Green  v.  Pledger,  3  Hare,  165.  Johns.  Ch.    (N.  Y.)    517;    Chedworth 
Compare  Montague  v.   Hill,  4   Russ.  v.  Edwards,  8  Ves.  46. 

128;     Portaslington     v.    Graham,     5  24.  Sebring  v.  Lant,  9  How.  Prac. 

Sim.  416.  (N.  Y.)  346. 

22.  Locke  v.  Locke,  166  Mass.  435,  25.  Galusha    v.    Flour    City    Nat. 
44  N.  E.  346.  Bank,  1  Hun   (N.  Y.),  573. 

2.3.   Delafield    v.    Illinois,    2    Hill  26.   Erickson  v.   First  Nat.  Bank, 

(N.  Y.),  159;  Patrick  v.  Harrison,  3  44  Neb.  622,  62  N.  W.  1078,  48  Am. 
Bro.    Ch.   476;    Lloyd   v.   Gurdon,   2      St.  R.  753,  28  L.  R.  A.  577. 

751 


§  499  Relating  to  Bonds  and  Notes. 

that  one  of  his  witnesses  by  whom  he  expects  to  establish  his 
defense  of  a  material  alteration  in  a  note,  may  die  or  move  away, 
is  not  alone  a  sufficient  ground  to  enjoin  the  negotiation  of  the 
instrument.27 

§  499.  Enjoining  action  on  note  obtained  by  fraud. — A  court 
of  equity  has  jurisdiction  to  enjoin  collection  of  a  note  possession 
of  which  has  been  obtained  by  fraud.28  So  where  a  son  who  has  by- 
fraud  and  undue  influence  obtained  possession  of  a  note  from  his 
father,  for  the  purpose  of  collecting  it  and  is  proceeding  to  collect 
and  convert  the  note  to  his  own  use,  the  father  may  have  an  injunc- 
tion to  enjoin  the  son  from  proceeding  with  the  suit  on  the  note.29 
And  where  the  possession  of  a  promissory  note  made  by  a  decedent 
is  lost  by  means  of  fraud,  and  the  note  is  allowed  to  the  fraudulent 
holder  as  a  valid  claim  against  the  decedent's  estate,  and  the  de- 
frauded owner  cannot  show  his  title  to  the  note  before  the  com- 
missioners, and  has  no  opportunity  at  law  of  having  the  merits 
of  his  claim  passed  upon,  he  is  entitled  to  an  injunction  to  prevent 
the  administrator  from  paying  the  amount  of  the  note  to  the 
fraudulent  and  insolvent  holder  until  after  a  hearing  upon  the 
merits.30    Where  a  note  is  alleged  to  be  a  forgery  it  is  decided  that 

27.  Erickson  v.  First  Nat.  Bank,  commissioners,  and  in  pursuance  of 
44  Neb.  622,  62  N.  W.  1078,  48  Am.  the  same  wrongful  act,  its  allowance 
St.  Rep.  753,  28  L.  R.  A.  577.  See  was  obtained  by  defendant  Curtiss  in 
Springport  v.  Teutonia  Sav.  Bank,  her  favor,  and  through  the  same 
75  N.  Y.  397.  Compare  Ritterhoff  v.  scheme  of  fraud  and  deception  the 
Puget  Sound  Nat.  Bank  (Wash.  complainant  was,  in  his  application 
1905),  79  Pac.  601.  to  have  it  allowed  in  his  favor,  de- 

28.  Hodson  v.  Eugene  Glass  Co.,  feated.  He  seems  to  have  been  pow- 
156  111.  397,  40  N.  E.  971.  erless  in    his    efforts    to    make   any 

29.  Reese  v.  Reese,  89  Ga.  645,  15  headway  against  the  defendants' 
S.  E.  846.  And  see  Lannes  v.  Cour-  schemes  of  fraud  in  depriving  him  of 
ege,  31  La.  Ann.  74.  his  property.     That  he  is  entitled  to 

30.  McKinney  v.  Curtiss,  60  Mich.  the  relief  he  asks  is  shown  by  the  fol- 
611,  621,  27  N.  W.  691,  per  Sher-  lowing  authorities:  Pearce  v.  Olney, 
wood,  J. :  "  It  seems  very  evident  20  Conn.  544 ;  Wierich  v.  De  Zoya,  2 
that  the  note  was  surreptitiously  ob-  Gilman  (111.),  385;  Nelson  v.  Rock- 
tained  from  the  complainant's  agent,  well,  14  111.  375;  Kent  v.  Ricards,  3 
and  upon  the  facts  stated  in  the  bill  Md.  Ch.  392;  Greene  v.  Haskell,  5 
it  was  fraudulently  placed  before  the  R.  I.  447 ;  Mack  v.  Doty,  Harr.  Ch. 

752 


Relating  to  Bonds  and  jSTotes.  §  500 

equity  may  entertain  jurisdiction  of  a  suit  to  prevent  the  holder 
from  asserting  any  demand  upon  such  note,  although  the  fact  of 
forgery  is  an  adequate  remedy  at  law  where  it  appears  that  there  is 
danger  of  losing  the  evidence  to  establish  forgery.31  In  a  suit  to 
concel  a  promissory  note  after  it  is  past  due,  brought  by  the  maker, 
on  the  ground  of  fraud  in  procuring  it  from  him,  against  the 
holder  and  his  indorsee  for  collection,  the  latter  should  not  be 
enjoined  from  returning  the  note  to  its  owner,  when  he  is  not 
shown  to  be  irresponsible,  since  the  suit  is  lis  pendens  notice  to  the 
world  of  the  plaintiff's  claims.32 

§  500.  Enjoining  action  on  note  for  failure  of  consideration. — 
Where  notes  have  been  given  and  there  is  a  failure  of  consideration 
therefor  the  maker  of  such  notes  may  invoke  the  aid  of  a  court  of 
equity  to  enjoin  their  transfer  by  the  payee.33  So  where  notes  are 
given  by  a  lessee  to  the  lessor  in  advance  for  rent  and  after  they 
are  given  proceedings:  are  instituted  for  the  foreclosure  of  a  mort- 
gage upon  the  property  leased,  it  is  decided  that  the  lessee,  in 
order  to  prevent  such  notes  from  falling  into  the  hands  of  a  bona 
fide  holder,  may  bring  an  action  to  enjoin  their  transfer  by  the 
lessor.34  And  where  the  inducement  to  buy  a  tract  of  land  was  the 
timber  thereon,  which  the  vendor  had  already  sold  without  the 
vendee's  knowledge,  an  injunction  was  granted  the  vendee  to  re- 
strain the  vendor  from  transferring  the  notes  given  for  the  pur- 
chase money  until  the  final  hearing  of  the  cause.35     But  it  is 

(Mich.)      366;     Wales    v.     Bank    of  31.  Rutterhoff     v.     Puget     Sound 

Michigan,   Harr.    Ch.     (Mich.)    308;  Nat.  Bank,  37  Wash.  77,  79  Pac.  601. 

Wixom  v.  Davis,  Walk.  Ch.  15;  Bur-  So  holding  where  one  of  the  plaintiffs 

pee  v.  Smith,  Walk.  Ch.  327 ;   Rath-  was  an  invalid. 

bone  v.   Warren,   10  Johns.    (N.  Y.)  32.  New  York  Construction  Co.  v. 

587;   Boyce  v.  Grundy,  3  Pet.  214,  7  Simon,  53  Fed.  1. 

L.  Ed.  655;  Hawkshaw  v.  Parkins,  2  33.  Belohradsky  v.  Kuhn,    69   111. 

Swanst.    539;    Adair  v.   Cummin,    48  547.    See  Six  v.  Shauer,  26  Med.  415; 

Mich.  376,   12  N.  W.  495;   Massie  v.  Grier  v.   Flitcraft,  57  N.  J.  Eq.  556, 

Watts,     6     Cranch,      148;      Hale     v.  41    Atl.    425. 

Chandler,    3    Mich.    531;     Edson    v.  34.  Thompson  v.  Flathers,  45  La. 

Cumings,  52  Mich.  52,  17  N.  W.  693;  Ann.   120,   12  So.  245. 

Holbrook  v.  Campau,  22  Mich.  288;  35.  Zeigler  v.  Beasley,  44  Ga.  56. 

Tong  v.  Marvin,  26  Mich.  35." 

753 
48 


§  501  Relating  to  Bonds  and  Notes. 

decided  that  equity  will  not  enjoin  a  vendor  from  collecting  or 
negotiating  securities  given  for  the  price  of  land  conveyed  with 
full  covenants  of  warranty,  on  account  of  alleged  defects  in  the  title 
not  amounting  to  a  total  failure  of  consideration,  where  there  has 
been  no  disturbance  or  eviction,  and  no  suit  is  pending  by  an 
adverse  claimant.36  And  in  a  suit  on  a  note,  an  answer  alleging 
plaintiffs  insolvency,  anel  that  defendant  is  liable  a6  his  surety  on 
an  overdue  note  to  a  third  person,  does  not  show  a  ground  for 
enjoining  the  suit.37  And  whore  the  plaintiff  prayed  that  the 
defendant  be  enjoined  from  selling,  hypothecating  or  disposing 
of  certain  notes  which  he  had  given  to  the  defendant  for  the  pur- 
pose of  obtaining  an  interest  in  a  partnership  and  alleged  that  the 
defendant  had  refused  to  comply  with  his  agreement,  that  he  had 
agre.d  to  sell  it  to  third  persons,  and  that  he  was  about  to  leave 
the  State  and  the  defendant  expressed  a  willingness  that  such  notes 
be  impounded,  it  was  decided  that  there  was  no  abuse  of  discretion 
in  reiusing  to  grant  the  injunction.38 

§  501.  Set-off;  insolvency.— Where  plaintiff  and  defendant  are 
mutually  indebted  to  each  other  on  negotiable  notes,  and  defendant 
becomes  insolvent,  he  may  be  enjoined  for  the  purpose  of  set-off 
from  transferring  the  note  made  by  plaintiff,  if  it  is  not  yet  due."9 

36.  Hile  v.  Davidson,  20  N.  J.  Eq.  ure     of     consideration.      Bullock    v. 

22c     Ai.d  see  Huitisli  v.  O  Brien,  20  Winter,   10  Ga.  214. 

N.  J.  Eq.  230;  Miller  v.  Giegory,  10  37.  Hopkins    v.    Fecnter,    47    Mo. 

N.  J.  Eq.  274;  Glenn  v.  Whipple,  12  331. 

N.  J.  Eq.  50;    Shannon  v.  Marselis,  38.  Isdale  v.  Hanson,  124  Ga.  393, 

1    N.    J.    Eq.    426.      When    a    party  52  S.  E.  618. 

liable    over     as     transferrer     to    the  39.  Lindsay    v.    Jackson     2    Paige 

transferee  of  a  note  is  notified  of  a  (N.    Y. ),    581,    per    Walworth,    Ch.: 

plea  of  failure  of  consideration,  filed  "There     the     defendants    could     not 

by  the  maker  in  a  suit  by  the  trans-  claim  present  payment  of  their  notes 

feree,  he  is  privy  in   law  to  a  judg-  due  six   months  hence,  and  therefore 

ment    rendered    against    the    trans-  it  would  be  inequitable  for  them,  by 

feree  on  such  plea   and  if  afterwards  an  offset,  to  compel  complainants  to 

the    transferrer    proceeds    at    law    to  pay   those   notes   before   they   became 

enforce    security    against    the    trans-  due.     But  as  the  defendant's  debt  is 

feree  taken  in   pnvment  for  the  note,  due,  and  if  they  paid  it  immediately 

the  transferee  will  be  relieved  by  in-  according     to    their    agreement,    the 

junction  to  the  extent  of  such   fail-  complainants  might  without  any  jus- 

754 


Relating  to  Bonds  and  Notes.  §  502 

The  general  rule  is  that  when  there  are  mutual  demands  between 
parties  which  cannot  be  set  off  under  the  statute,  but  may  be  set  off 
in  equity,  without  interfering  with  equitable  rights,  the  fact  that 
one  of  the  parties  is  insolvent  gives  jurisdiction  to  a  court  of  equity 
to  enforce  the  set-off.40  Where  a  note  was  given  to  one  as  the 
trustee  for  another,  and  secured  by  a  chattel  mortgage,  and  the 
real  owner  became  insolvent,  it  was  held  that  the  maker  could 
restrain  the  payee  from  transferring  the  note  before  maturity  and 
from  foreclosing  the  mortgage,  on  the  ground  of  fraud  and  failure 
of  consideration.41 

§  502.  Enjoining  defense  of  coverture  to  wife's  note. — Where 
a  wife  made  her  note  to  her  husband's  order,  and  for  his  use,  and 
he  applied  for  its  discount  to  a  bank  official,  who  knew  it  was  made 
by  her  without  consideration,  but  not  with  notice1  that  it  was  for 
the  husband's  benefit,  it  was  held  that  she  was  estopped,  and  was 
properly  enjoined  from  setting  up  against  the  bank  that  she  was 
a  mere  surety  on  the  note1.  It  was  held  also  that  the  wife's  plead- 
ing that  the  contract  was  between  husband  and  wife,  and  therefore 
void  at  law,  compelled  the  bank  to  go  into  a  court  of  equity,  and 
that  she  would  not  be  permitted  to  litigate  the  matter  again  in  the 
law  courts.42 

tice  to  the  otlier  party  waive  the  time  153;    Robbins   v.   Holley,     1     Monroe 

of   credit,    which    was   for   their   own  (Ky.),   194. 

benefit,    and    pay    the   notes    immedi-  41.  Belohradsky  v.   Kulm,   69   III. 

ately  with   the  money  thus  received,  547. 

the    defendants     have     no     cause     to  42.  PTackettstown     Nat.     Bank    v. 

complain  of  such  a  mode  of  cempen-  Ming,  52  N.  J.  Eq.   156.  27  Atl.  920. 

sa'.  ing  one   debt   by  another.     Under  The  note  in  this  case  was  discounted 

the   circumstances.   I   think   it  would  by  the  bank  by  giving  a  check  to  the 

be   inequitable  and  unjust  to   permit  wife's  order,   which   the   husband   ac- 

the    defendants    to    dispose    of    these  cepted,   and   which   she   indorsed   and 

notes,    either    for    their    own    private  delivered   to   him.   she    knowing   chat 

purposes,  or  in  payment  of  their  gen-  it  was  the  proceeds  of  the  discount, 

eral  or  favorite  creditors,  leaving  the  Of  these  facts.   Putney,   V.  C,   said: 

complainant's    debt    unpaid."  "She  thereby  became  the  borrower  of 

40.  Pond   v.   Smith.  4   Conn.   302;  the  money,  and  liable  as  sue!)  to  the 

Simson   v.    Hart,    14   Johns.    (N.  Y.)  bank,  and   she  could   not,   as  against 

63;   Rarchet  v.  Sarehet,  2  Ohio,  320;  the  bank,  change  her  position  to  one 

Collins    v.    Farquar,    4    Litt.    (Ky.)  of   suretyship    by    handing  the   pro- 


TO£> 


503 


Relating  to  Bonds  and  Notes. 


§  503.  As  against  subsequent  holder. — Where  a  mortgage 
given  as  security  of  negotiable  notes  is  valid  on  its  face,  duly  re- 
corded, and  imports  confession  of  judgment  by  the  mortgagor  in 
favor  of  the  mortgagee  and  any  future  holder  of  the  note,  the 
mortgagor  cannot  impair  the  value  of  the  mortgage,  nor  enjoin 
its  enforcement  by  executory  process,  as  against  any  subsequent 
holder  of  the  notes,  by  pleading  secret  equities  between  the  orig- 
inal parties  to  the  notes,  arising  from  his  own  fault  or  negligence, 
of  which  the  subsequent  holder  had  no  notice  and  no  means  of 
information.43  But  one  who  takes  a  lease  of  property  which  he 
knows  to  be  mortgaged,  and  gives  his  notes  in  advance  for  the 
rent,  may,  in  case  of  the  foreclosure  of  the  mortgage,  and  to  pre- 


ceeds  to  her  husband  for  his  own  per- 
sonal use.  To  authorize  her  to  do  so 
would  be  to  enable  her  to  make  use 
of  the  enabling  statute  to  practice  a 
fraud.  But  as  the  form  of  the  con- 
tract is  one  of  a  promise  by  the  wife 
to  the  husband,  by  him  assigned  to 
the  bank,  the  latter  can  have  no 
remedy  at  law,  but  must  come  to  this 
court  for  relief.  National  Bank  v. 
Brewster,  49  N.  J.  L.  231,  12  Atl. 
769;  Gould  v.  Gould,  35  N.  J.  Eq. 
37.  I  think  it  worthy  of  remark  that 
if  the  defendant  had  so  framed  the 
rule  opening  the  judgment  as  to  con- 
fine her  defense  at  law  to  the  merits, 
and  bad  refrained  from  pleading  that 
the  contract  was  between  husband 
and  wife,  and  therefore  void,  the 
merits  of  the  case  might,  as  it 
seems  to  me,  have  been  dealt 
with  at  law.  It  is  certainly  wholly 
the  fault  of  the  defendant  that  the 
complainant  was  driven  into  this 
court,  and  the  result  is  that  she 
must  be  bound  by  its  finding.  Hav- 
ing been  deprived  of  tbe  opportunuity 
to  prove  its  case  at  law  and  compelled 
to  prove  it  here  or  not  at  all,  it 
would  be  gross  injustice  to  compel  it 


to  prove  it  over  again  in  the  law 
court,  in  order  to  obtain  the  fruit  of 
its  judgment  there.  Reason  and  jus- 
tice require  that  a  wife  who  avails 
herself  of  the  advantages  of  the 
statute  emancipating  her  from  the 
business  trammels  which  the  com- 
mon law  threw  around  her,  should  be 
bound  by  her  acts  and  representations 
to  the  same  extent  as  a  single  woman 
or  a  man.  Bank  v.  Craig,  1  N.  J. 
L.  Jour.  153;  Bodine  v.  Killeen,  53 
N.  Y.  93 ;  Frecking  v.  Rolland,  53  N. 
Y.  422;  Noel  v.  Kinney,  106  N.  Y. 
74,  12  N.  E.  351." 

43.  State  Nat.  Bank  v.  Flathers, 
45  La.  Ann.  75,  12  So.  243,  where  the 
court  relied  on  Schepp  v.  Smith,  35 
La.  Ann.  1 ;  Butler  v.  Slocomb,  33  La. 
Ann.  170;  Davis  v.  Greve,  32  La. 
Ann.  420;  Taylor  v.  Bowles,  28  La. 
Ann.  294;  Gardner  v.  Maxwell,  27 
La.  Ann.  562;  Carpenter  v.  Allen, 
16  La.  Ann.  435;  and  distinguished, 
Morris  v.  White,  28  La.  Ann.  856; 
Garner  v.  Gay,  26  La.  Ann.  376;  Doll 
v.  Rizotti,  20  La.  Ann.  265;  Bowman 
v.  McKleroy,  14  jua.  Ann.  587,  where 
the  equities  were  opposed  by  another 
than  the  mortgagor,  or  the  property 


756 


Relating  to  Bonds  and  Xotes.  §  503 

vent  the  notes  from  passing  into  the  hands  of  a  bona  fide  holder, 
enjoin  the  lessor  from  negotiating  the  notes,  and  to  compel  him  to 
give  security  against  the  payment  of  the  same.44 

mortgaged    did    not    belong    to    the  44.  Thompson  v.  Flathers,  45  La. 

mortgagor,  or  the  mortgage  had  been       Ann.  120,  12  So.  245. 
canceled  before  its  transfer. 


757 


504       Relating  to  Strikes,  Boycotts  and  Monopolies. 


CHAPTER  XVII. 

Relating  to  Strikes,  Boycotts  and  Monopolies. 

Section  504.  Enjoining  strikers  from  using  force,  threats  or  intimidation. 
504a.  \\  hat  constitutes  intimidation. 
504b.  Picketing  by  strikers. 
504c.  Rights  of  employees  in  respect  to  striking. 

505.  Mere  enticement  or  persuasion  of  workers  not  enjoined. 
505a.  Interference  with  access  to  premises. 

506.  What  trade  combinations  not  enjoined. 

507.  Lawful    trade  combinations. 
507a.  Conspiracy  generally. 
507b.  Conspiracy  continued. 
507c.  Boycotts  generally. 

508.  Restraining  boycott  of  newspapers. 

508a.  Railroad    strikes    affecting    interstate    commerce    and    mails — 
Right  of  national  government. 

509.  Railroad   boycotts — Violating  Interstate  Commerce  Act. 

510.  Same  subject. 

511.  Enjoining  trade  libels. 
511a.  Same    subject — Circulars. 

512.  In  case  of  trespass. 

513.  Restraining  monopolies. 

513a.  Same  subject — Northern  Securities  Co.  v.  United  States. 

514.  Protecting  monopolies  by  injunction, 

515.  Monopolies — Restraint  of  interstate  commerce. 

516.  Same  subject  continued. 

517.  Commercial   trusts — Insurance  combinations. 
517a.  Who  bound  by  injunction — Violation  of. 

Section  504.  Enjoining  strikers  from  using  force,  threats  or 
intimidation. — It  is  a  general  rule,  will  settled  by  numerous  de- 
cisions, that,  the  us  ,  by  strikers,  of  force,  threats  or  intimidation 
to  cause  other  employees  to  have  the  service  of  an  employ  r,  or  to 
prevent  persons  from  entering  into  his  employ,  will  ba  enjoin. d.1 

1.  United      Stales. — Knudsen       v.  pie.   220     111.    355,    77     N.    E.    17(5; 

Benn.,    123    Fed.    030;     Consolidated  Chrisiensen    v.    Kellogg    Switchboard 

Steel   &   W.   Co.   v.   Murray,    80    Fed  &  S.  Co.,   110  111.  App.  61. 
811*  Michigan. — Enterprise  Foundry  Co. 

Illinois.— Franklin    Union    v.    Peo-  v.     Iron     Moulders'     Union      (Mich. 

758 


Relating  to  Strikes,  Boycotts  and  Monopolies.       §  504 

And  it  is  decided  that  an  employer  is  entitled  to  an  injunction 
restraining  third  persons  from  personally  interfering  with  persons 
willing  to  be  employed,  with  the  intention  of  coercing  them  to 
refrain  from  entering  the  employ  of  such  employer,  as  such  con- 
duct is  an  invasion  of  the  rights  of  an  employer  to  have  labor  flow 


1907),   112  N.  W.  685. 

jj.AsoMX. — Hamilton  Brown  Shoe 
Co.  v.  baxey,  131  Mo.  212,  32  S.  W. 
1  lOU ;  Swaiue  v.  Blackmore,  75  Mo. 
App.  74. 

Neio  York. — New  York  Cent.  I.  W. 
Co.  v.  Brennan,  105  N.  Y.  Supp.  8(55; 
D«vis  v.  Zimmerman,  1)1  Hun,  489, 
36  Is.  Y.  Supp.  303;  Butterick  Pub. 
Co.  v.  Typographical  Union.  50  Misc. 
R.  1,  100  N.  Y.  Supp.  292. 

Pennsylvania. — Murdoch  v.  Walker, 
152  Pa.  St.  595,  25  Atl.  492,  34  Am. 
St.   Rep.   G78. 

A  strike  has  been  defined  as  a 
combined  effort  among  workmen  to 
compel  the  master  to  the  concession 
of  a  eer  ain  demand,  by  preventing 
the  conduct  of  his  business  until  com- 
pliance with  the  demand.  Farmers' 
Loan  &  T.  Co.  v.  Northern  Pac.  R. 
Co.,  GO  Fed.  S03. 

Construction  cf  injunction. — 
An  injunction  restraining  defendants 
named  in  the  bill,  their  confederates, 
and  all  others  associated  with  them, 
from  in'erferir.g  witli  the  plaintiff's 
employees  now  in  its  employ  at  or 
u^on  its  premises  or  from  interfer- 
ing with  any  person  in  or  upon  its 
i  r  i  es  who  may  desire  to  enter 
it  employment,  by  the  use  of  threats, 
p  r  -  nal  violence,  intimidation  or  by 
any  other  means  wiia' soever  calcu- 
1  -ted  to  intimidate,  terrorize,  end 
i  ! ■"  n  or  place  in  fear  any  of  the 
employees  of  the  plaintiff,  in  any 
niPTTer  whatsoever,  at  or  upon  its 
p'-emisea  and  also  enjoining  such 
persons   from    going   upon   plaintiffs 


premises  to  induce  employees  to  quit 
work,  or  from  congregating  in  or 
about  the  premises  tor  such  purpose 
or  from  interfering  with  plaintiff's 
employees  in  passing  to  and  from 
their  work,  is  to  be  construed  as  in- 
hibiting the  defendants  and  all  other 
persons  subject  to  the  injunction 
from  using  personal  violence  or  intim- 
idation of  any  sort  of  the  employees 
of  the  plaintiff.  Ex  parte  Richards, 
117  Fed.  658. 

In  New  York  it  is  decided  that 
the  only  mode  of  redress  open  to 
parties  generally,  for  injuries  occa 
sioned  to  them  through  the  voluntary 
combination  of  others  engaged  in  sim- 
ilar employments  with  a  view  of  in- 
fluencing and  controlling  the  gen- 
eral conduct  and  management  of  such 
trade  or  employment,  is  prosecution 
under  the  Penal  Code,  §  1G8,  and 
unless  some  injury  has  been  in- 
flicted on  the  person  or  some  right 
of  property  has  been  invaded,  de- 
stroyed or  prejudiced  an  injunction 
will  not  lie.  Russell  &  Sons  v. 
Stampers  &  G.  I.  L.  Union,  57  Misc. 
R.  (N.  Y.)  96,  107  N.  Y.  Supn.  301, 
citing  Thomas  v.  Musical  M.  P. 
Union,  121  N.  Y.  45,  24  N.  E.  24. 

A  labor  nnion  may  be  re- 
strained by  injunction  from  at- 
tempting to  enforce  an  edict  to  em- 
ployers, dictating  to  them  that  non- 
union men  shall  not  be  employed  and 
that  they  will  not  be  permitted  to 
operate  their  plant  with  such  em- 
ployees. Otis  Steel  Co.  v.  Local 
Union,  110  Fed.  698. 


759 


,§  504       Relating  to  Strikes,  Boycotts  and  Monopolies. 

freely  to  him.2  So  where  in  a  certain  mining  district  non-union 
men  were  employed  and  members  of  a  miners'  organization,  the 
object  of  which  was  to  secure  uniform  wages,  established  camps 
in  such  mining  district  making  a  display  of  force  to  induce  the 
non-union  men  to  join  the  union,  and  threats  were  in  fact  made 
and  in  some  cases  assaults  for  a  refusal  to  join  such  union,  it  was 
decided  that  an  injunction  should  be  granted  against  the  continu- 
ance of  such  camps  and  the  further  display  of  force  to  interfere 
with  the  rights  of  the  employer  or  employees.3  And  in  case  of  a 
strike  against  a  railroad  corporation  in  the  hands  of  a  receiver  an 
injunction  will  be  granted  to  restrain  those  acts  which  are  desigued 
to  physically  cripple  the  property,  or  to  actually  obstruct  the  opera- 
tion of  the  road,  or  interference  with  employees  who  do  not  wish 
to  quit  or  to  prevent  by  intimidation  or  other  wrongful  modes  or 
by  any  device  the  employment  of  others  to  take  the  place  of  those 
quitting.4  Again,  where  persons  had  left  the  employ  of  a  manu- 
facturer it  was  held  that  they  would  be  restrained  by  injunction 
from  displaying  banners  in  front  of  his  premises  as  a  part  of  a 
scheme  to  prevent  persons  from  entering  into  or  continuing  in  his 
employment.5  And  the  granting  of  an  injunction  against  strikers 
restraining  the  doing  of  certain  unlawful  acts  should  not  be  re- 
fused merely  because  it  will  operate  to  break  the  strike.  So  it  is 
said  that  a  court  is  not  a  "  strike  breaker  "  and  is  not  engaged  in 
that  business  whether  it  be  a  State  or  Federal  court,  and  its  duties 
are  not  properly  to  be  administered  on  any  such  suggestion.  If 
that  should  be  the  effect  of  a  preliminary  injunction,  or  a  final 
decree  for  that  matter,  it  is  only  because  the  defendants  voluntarily 
will  have  it  so,  and  prefer  to  abandon  all  rightful  action  in  main- 
taining their  organized  strike,  because  they  cannot  act  wrongfully, 
or,  at  least,  cannot  do  those  things  which  are  pronounced  wrongful 

2.  Jersey  City  Printing  Co.  v.  5.  Sherry  v.  Perkins,  147  Mass. 
Cassidy,  63  N.  J.  Eq.  759,  53  Atl.  230.  212,   17  N.  E.   307,  where  Allen,  J., 

3.  Reinecke  Coal  Min.  Co.  v.  Wood,  also  cited  and  relied  on  Gilbert  v. 
112  Fed.  477.  Mickle,  4   Sandf.  Ch.    (N.  Y.)    357; 

4.  Arthur  v.  Oakes,  63  Fed.  310,  Springfield  Spinning  Co.  v.  Riley,  L. 
11  C.  C.  A.  209,  25  L.  R.  A.  414;  R.  6  Eq.  551.  In  Collard  v.  Mar- 
Farmers'  Loan  &  T.  Co.  v.  Northern  shall  (1892),  1  Ch.  571,  an  interim 
Pac.  R.  Co.,  60  Fed.  803.  injunction   was   granted   to   restrain 

760 


Relating  to  Strikes,  Boycotts  and  Monopolies.     §  504a 

by  the  courts.6  The  equitable  remedy  to  restrain  unlawful  acts 
on  the  part  of  strikers  is  an  independent  remedy  arising  out  of  the 
conditions  of  inadequacy  of  that  otherwise  wholly  independent 
remedy  of  an  action  at  law  for  damages.  Upon  neither  of  these 
does  the  remedy  of  criminal  prosecution  have  any  bearing,  except 
that  if  the  criminal  law  be  so  thoroughly  executed  that  there  would 
then  be  no  occasion  for  actions  at  law  for  damages  or  bills  in  equity 
for  injunction.7 

§  504a.  What  constitutes  intimidation. — A  display  of  force  by 
strikers  against  laborers  who  wish  to  work,  such  as  surrounding 
them  in  large  numbers  applying  opprobious  epithets  to  them  and 
urging  them  in  a  hostile  manner  not  to  go  to  work  though  no  force 
be  actually  used,  is  held  to  be  as  much  intimidation  as  actual 
violence  itself,  and  such  conduct  may  be  restrained  by  injunction.8 
So  where  two  hundred  striking  miners  marched  back  and  forth 
past  a  mine  where  non-union  men  were  employed  and  when  the 
latter  left  work  the  strikers  lined  up  on  each  side  of  the  road  where 
the  miners  must  cross  in  leaving  work,  it  was  held  though  there 
were  no  threats  or  no  loud  taunting  or  boisterous  language,  the 
purpose  of  the  strikers  was  to  intimidate  the  men  and  thereby 
induce  them  to  leave  their  work,  and  secure  their  co-operation  in 
closing  the  mines,  and  that  such  actions  being  intimidating  and 
unlawful  they  were  guilty  of  a  violation  of  a  preliminary  injunc- 
tion.9 

the     publication     of    circulars     and  kinds  of  coercion:     (1)   A  threat 

placards,  falsely  representing  that  a  by  word  or  act  of  an  individual  or  by 

strike  was  on  at  a  certain  factory,  a  combination  of  persons,  to  do  some- 

which    injured    its   business.  thing  unlawful,  reasonably  calculated 

6.  American  Steel  &  Wire  Co.  v.  to  compel  the  person  threatened  to  do 
Wire  Drawers  &  D.  M.  Unions,  90  or  not  to  do  something;  and  (2)  re- 
Fed.  598.  quest  or  persuasion  by  or  on  behalf 

7.  Southern  Ry.  Co.  v.  Machinists'  of  a  combination  of  persons  to  do 
Local  Union,  111  Fed.  49.  or  not  to  do  something,  resulting  in 

8.  O'Neil  v.  Behanna,  182  Pa.  St.  coercion  of  the  will  from  mere  force 
236,  37  Atl.  843,  61  Am.  St.  Rep.  of  numbers.  Allis-Chalmers  Co.  v. 
702,  38  L.  R.  A.  382;  Wick  China  Iron  Moulders'  Union,  150  Fed.  155, 
Co.   v.   Brown,    164   Pa.   St.   449,   30  173.     Per  Sanborn,  J. 

Atl.  261.  9.  Mackall  v.   Ratchford,   82   Fed. 

Intimidation       denotes       two       41. 

761 


§  504b     Relating  to  Strikes,  Boycotts  and  Monopolies. 

§  504b.  Picketing  by  strikers. — Peaceful  picketing  is  permis- 
sible, and  as  long  as  it  is  contined  strictly  and  in  good  iaith  to 
gaining  information  and  to  peaceful  persuasion  and  argum  nr,  .t 
is  not  forbidden  by  law.10  An  injunction  will  not  be  granted  lo 
prevent  strikers  from  peacefully  picketing  in  reasonable  numbers 
for  the  purpose  of  observation  only  of  the  premiss  of  the  ir  former 
employer  from  the  highways  or  streets  in  its  vicinity  and  endeavor- 
ing by  argument,  persuasion  or  appeal  only,  to  prevent  other  p  r- 
sons  from  b. coining  employees  of  such  employer.11  But  when 
picketing  extends  beyond  the  limits  of  peaceable  persuasion  and 
argument  and  becomes  persuasion  by  intimidation,  it  is  then  con- 
demned by  the  courts  and  may  be  enjoined.12  So  it  has  be<  n 
declared  that  where  peaceful  picketing  develops  as  it  gem  rally 
do  s  in  a  strike,  into  strong,  persistant  and  organized  persuasion, 
and  social  pressure  of  every  description,  making  the  condition  of 
workmen  disagreeable  and  intolerable,  followed  by  hints  of  injury, 
veiled  threats,  offensive  or  abusive  language,  and  occasional 
instances  of  assault  and  personal  violence,  the  case  is  then  e:ne 
properly  within  the  powe  r  of  a  court  to  afford  relief  by  injunction.13 
Se>  picketing,  in  proximity  to  the  employer's  place  of  business  or 
elsewhere  on  the  streets  of  a  city,  if  it  in  fact  annoys  or  intimidates 

10.  Goldfield  Consol.  Mines  Co.  v.  junction.  See  Atchison,  T.  &  S.  F. 
Goldfield  Miners  Union,  159  Feel.  51)0,        R.  Co.   v.  Gee,   IS'.)  Fed.   582. 

521;  Senile  Mfg.  Co.  v.  Terry.  5(5  Proof  of  allegations. —  In  an 
Misc.  It.  (N.  Y. )  205,  100  N.  Y.  Supp.  action  brought  against  a  labor  union 
438;  But'erick  Pub.  Co.  v.  Typo-  and  its  officers  and  members  lo  re- 
graphical  Union  50  Misc.  11.  (N.  Y.)  strain  them  from  interfering  with 
1.    ]()()   N.  Y.   Supp.  2!)2.  the    plaintiff    in    the   conduct    of    his 

11.  Senile  Mfg.  Co.  v.  Terry,  5G  business  by  stationing  pickets  near 
Misc.  R.  (N.  Y.)  205,  100  N.  Y.  bis  place  of  business  it  is  the  right 
Supp.  438.  of    the    defendants    to    insist    upon 

12.  Gold  field  Consol.  Mines  Co.  v.  proof  of  every  material  allegation  of 
Goldfiedd  Miners'  Union,  15!)  Fed.  the  complaint  which  has  been  con- 
500  521  ;  Barnes  &  Co.  v.  Chicago  troverted  by  the  answer.  Crescent 
Typographical  Union,  232  HI.  424,  83  Feather  Co.  v.  United  Upholsterers' 
N.  E.  040;  Vilter  Mfg.  Co.  v.  Union  (Cal.  S.  C.  1008).  95  Pac.  871. 
Humphrey  (Wis.  1907),  112  N.  W.  13.  Allis-Chalmers  Co.  v.  Iron 
1095.  See  Lyons  v.  Wilkins.  74  Law  Moulders'  Union,  150  Fed.  155,  173. 
T.  Hep.  35S,  (55  L.  J.  Ch.  N.  S.  G01.  Per  Sanborn,  J. 

Picketing   as   violation   of  in- 

7G2 


Relating  to  Strikes,  Boycotts  and  Monopolies.     §  504c 

the  new  employees,  is  not  allowable.  The  streets  are  for  public 
use,  and  the  new  employee  has  the  same  right  to  go  back  and  forth, 
freely  and  without  molestation,  and  without  being  harrassed  by  so- 
called  arguments,  and  without  being  picketed,  as  has  any  other 
person.14  Therefore,  it  is  a  general  rule  that  where  picketing  is 
accompanied  by  the  use  of  force,  threats  or  intimidation  either  in 
respect  to  the  employer,  his  employees,  or  those  seeking  to  enter 
his  employ,  an  injunction  against  such  acts  will  b?  granted.10  So 
where  it  appeared  that  strikers,  who  had  been  in  the  employ  of  the 
complainant,  had  for  several  weeks  both  day  and  night,  patrolled 
the  streets  adjacent  to  the  complainant's  mills  for  the  purpose  of 
persuading  other  workmen  from  taking  their  places,  and  it  ap- 
peared also  that  several  conflicts  had  occurred  between  the  strikers 
and  others,  it  was  decided  that  the  strikers  should  be  enjoined  from 
so  acting,  as  violating  the  property  rights  of  the  plaintiffs  in  the 
streets,  their  liberty  of  contracting  for  substituted  labor,  and  the 
liberty  of  the  substitutes,  to  work  and  to  pass  through  the  streets 
to  their  work.  In  this  case  the  court  declared  that  physical 
battery  and  assaults  were  not  necessary  to  constitute  unlawful 
force  and  that  the  most  potential  and  unlawful  force  or 
violence  might  exist  without  lifting  a  finger  against  any  man,  or 
uttering  a  word  of  threat  against  him.16  In  Massachusetts  it  is 
d(  cided  that  picketing,  organized  pressure,  indirect  threats  of  harm, 
although  there  be  no  express  intimidation,  and  although  the  lan- 
guage used  be  courteous  and  gentlemanly,  amount  to  intimidation, 
and  are  unlawful,  not  justified  by  the  motive  of  economic  benefit 
to  the  union.17 

£  504c.  Rights  of  employees  in  respect  to  striking. — The  law 

do  s  not  prohibit  workmen  from  holding  conferences,  and  discuss- 

14.  Union  Pac.  R.  Co.  v.  Ruef,  120  ner,  107  Mass.  92,  44  N.  E.  1077,  35 
Fed.  102.     Per  McPlierson,  J.  L.  R.  A.  722,  57   Am.  St.   Kep.  443; 

15.  Allis-Clialmers  Co.  v.   Reliable  New    York    Central    Iron    Works    v. 
Lodge,    111    Fed.  2G4;    Otis  Steel   Co.  Brennan,  105  N.  Y.  Supp.  8(i5. 

v.  Local  Union,  110  Fed.  698;  Frank-  16.  American  St-.-el  &  Wire  Co.  v. 

liu   Union  v.  People,  220  111.  355,  77  Wire    Drawers   &   D.   M.   Unions,    90 

N.    E.    170;    Cliristenson   v.    Kellogg,  Fed.  008. 

110  111.  App.  01;   Vegelahn  v.  Gunt-  17.   Vegelahn     v.     Guntner,      107 

763 


§  505       Eelating  to  Strikes,  Boycotts  and  Monopolies. 

ing  their  grievances  with  the  object  and  purpose  of  striking  or 
ceasing  work  at  a  preconcerted  time.18  And  workmen  are  not  for- 
bidden by  law  from  seeking,  taking,  or  following  the  advice  of  the 
officers  of  their  union  or  labor  organization  in  regard  thereto.19 
And  the  right  of  workmen  to  combine  and  to  cease  their  employ- 
ment in  a  body  is  also  not  subject  to  dispute,  it  being  declared  that 
such  right  is  as  absolute  as  the  right  of  an  employer  to  discharge 
any  number  of  men  in  his  employment.20  Nor  will  either  an  inter- 
locutory decree  or  a  final  decree  for  a  perpetual  injunction  be  con- 
strued as  requiring  the  abandonment  of  a  lawfully  conducted 
strike.21 

§  505.  Mere  enticement  or  persuasion  of  workmen  not  en- 
joined.— A  permanent  injunction  will  not  be  granted  against  a 
combination  of  persons  whose  object  is  to  entice  away  workmen 
from  their  employment,  nor  can  the  employer  maintain  an  action 
in  equity  to  recover  such  damages  as  he  has  sustained.22  Members 
of  workingmen's  associations  have  the  right,  either  as  individuals, 
or  as  an  organization,  to  cease  to  work  for  any  employer,  and  to 
use  all  peaceful  and  lawful  means  to  induce  others  to  cease  to  work 
for  him.23     And  strikers  have  the  right  to  endeavor  by  peaceful 


Mass.  92,  44  N.  E.  1077,  35  L.  R.  A 
722,  57  Am.  St.  Rep.  443. 

18.  Delaware,  L.  &  W.  R.  Co.  v 
Switchmens'  Union,  158  Fed.  541. 

19.  Delaware,  L.  &  W.  R.  Co.  v 
Switchmens'  Union,  158  Fed.  541. 

20.  Jersey  City  Printing  Co.  v 
Cassidy,  63  N.  J.  Eq.  759,  53  Atl 
230,  holding  that  union  workmen 
have  the  right  to  strike  on  the  em 
ployee's  refusal  to  discharge  non 
union  men  in  his  employ.  See,  also, 
Karges  Furn.  Co.  v.  Amalgamated 
Woodworkers,  165  Ind.  421,  75  N.  E. 
877;  Murdock  v.  Walker,  152  Pa. 
St.  595,  25  Atl.  492,  34  Am.  St.  Rep. 
678. 

This   right   we   also   recognized   in 


a   large    proportion  of    the   decisions 
in  regard  to  this  subject. 

21.  American  Steel  &  W.  Co.  v. 
Wire  Drawers  &  D.  M.  Unions,  90 
Fed.  598. 

22.  Reynolds  v.  Everett,  50  N.  Y. 
St.  Rep.  889.  In  Johnston  Harvester 
Co.  v.  Meinhardt,  9  Abb.  N.  C.  (N. 
Y.)  401,  aff'd  24  Hun,  489,  Macom- 
ber,  J.,  said  he  was  disinclined  to  ex- 
tend "  the  doctrine  of  recovery  for 
enticing  away  servants,  where  both, 
in  fact  and  theory,  the  person  enticed 
is  a  free  agent  to  come  and  go  as  he 
will,  responsible  only  like  other  per- 
sons for  the  violation  of  his  contract 
or  his  duty." 

23.  Murdock  v.  Walker,   152  Pa. 


764 


Relating  to  Strikes,  Boycotts  and  Monopolies.       §  505 


argument  or  persuasion  to  secure  the  co-operation  of  non-union 
men  provided  the  persuasion  is  of  such  a  character  as  to  leave  the 
person  solicited  feeling  free  to  do  as  he  pleases  and  he  is  not  per- 


St.  505,  25  Atl.  492,  34  Am.  St.  Rep. 
678.  The  following  extract  is  from 
the  valuable  opinion  of  Gaines,  J.,  in 
Queen  Ins.  Co.  v.  State  (Tex.  1893), 
24  S.  W.  397:  "Mr.  Freeman,  in 
his  note  to  the  case  of  People  v. 
Fisher,  28  Am.  Dec.  508,  says:  'Re- 
cent decisions  in  England,  and  the 
spirit  now  prevailing  there  and  in 
this  country,  of  giving  encourage- 
ment to  workmen  in  their  endeavors 
to  associate  themselves  into  organi- 
zations for  their  mutual  benefit,  have 
settled  beyond  question  that  unem- 
ployed workmen  may  unite  and  agree 
not  to  work  unless  for  a  certain 
price.  This  is  a  plain  right,  upon 
which  no  doubt  ought  ever  to  have 
existed.'  The  learned  annotator  then 
quotes:  'The  law  is  clear  that  work- 
men have  a  right  to  combine  for 
their  own  protection,  and  to  obtain 
such  wages  as  they  may  choose  to 
agree  to  demand;'  citing  Reg.  v. 
Rowlands,  5  Cox,  Crim.  Cas.  436, 
460.  In  Com.  v.  Hunt,  4  Mete. 
(Mass.)  Ill,  it  was  held  by  the  Su- 
preme Court  of  Massachusetts  that 
an  association  among  journeymen 
boot-makers,  in  which  they  bound 
themselves  not  to  work  for  any  per- 
son who  employed  one  not  a  member 
of  the  association,  was  not  indictable 
at  common  law.  Following  that  de- 
cision, that  court  also  held,  in  Bowen 
v.  Matheson,  14  Allen,  499,  that  an 
agreement  among  certain  defendants 
by  which  they  sought  to  compel  the 
plaintiff,  a  shipping  master,  among 
other  things,  to  ship  men  from  them 
at  an  established  rate  of  wages,  was 
not  illegal,  and  did  not  give  a  ground 
of    action,    although    the    plaintiff's 


business  had  been  damaged  by  the 
conspiracy.  So,  also,  in  Carew  v. 
Rutherford,  106  Mass.  10,  they  say 
that  '  it  is  no  crime  for  any  number 
of  workmen  to  associate  themselves, 
and  agree  not  to  work  for  or  deal 
with  certain  men  or  certain  classes 
of  men,  or  work  under  certain  wages 
or  without  certain  conditions.'  We 
take  it,  therefore,  that  the  weight  of 
authority  is  against  the  proposition 
that  such  a  combination  among 
workmen  was  indictable  at  common 
law.  It  does  not  follow,  however, 
that  any  agreement  of  that  character 
is  not  against  public  policy,  and 
therefore  void;  but  it  is  proper  to 
show  that  it  was  not  an  indictable 
offense  at  common  law,  for,  if  so,  any 
contract  in  pursuance  of  such  an 
agreement  would  have  been  illegal,  in 
the  sense  that  it  would  not  be  en- 
forceable in  the  courts.  Upon  the 
question  whether  an  agreement 
among  workmen  to  raise  their  wages 
is  contrary  to  public  policy,  as  being 
in  restraint  of  trade,  there  is  some 
conflict  in  the  authorities.  In  Collins 
v.  Locke,  4  App.  Cas.  674,  the  judi- 
cial committee  of  the  privy  council 
held  that  a  contract  between  steve- 
dores in  a  certain  port,  by  which 
they  agreed  to  parcel  out  the  steve- 
doring business,  was  not  void,  as  a 
contract  in  restraint  of  trade,  at 
common  law.  The  court  says:  'The 
objects  which  this  agreement  has  in 
view  are  to  parcel  out  the  stevedor- 
ing business  of  the  port  among  the 
parties  to  it,  and  to  prevent  compe- 
tition at  least  among  themselves,  and 
also,  it  may  be,  to  keep  up  the  price 
to  be  paid  for  the  work.    Their  lord- 


765 


§  505       Relating  to  Strikes,  Boycotts  and  Monopolies. 

sanded  to  do  that  which  in  him  would  bo  unlawful.24  Indirect 
interference  by  a  labor  union  with  the  employer's  business,  not 
amounting  to  coercion,  by  preventing  him  from  getting  workmen 
to  carry  on  his  shop,  is  not  unlawful  so  long  as  the  combination  is 
merely  taking  measures  to  secure  its  own  legitimate  advantage  or 
economic  advancement,  although  harm  may  incidentally  result  to 
the  employer.25    So  in  one  case  the  rule  is  laid  down  that  strikers 


ships  are  not  prepared  to  say  tliat 
an  agreement  having  these  objects  is 
invalid  if  carried  into  ell'cet  by 
proper  means — tliat  is,  by  provisions 
reasonably  necessary  for  the  pur- 
pose— though  the  effect  of  them 
might  be  to  create  a  partial  restraint 
upon  the  power  of  the  parties  to  ex- 
ercise their  trade.'  In  Association  v. 
Walsh,  2  Daly,  1,  which  was  a  civil 
action,  it  was  held  that  it  was  not 
unlawful  for  workmen  to  agree  that 
they  would  not  work  below  certain 
rates,  and  that  a  by-law  of  an  associ- 
ation which  provided  a  pecuniary 
penalty  for  the  violation  by  way  of 
a  fine  could  be  recovered.  The  deci- 
sion was  not  by  a  court  of  last  re- 
sort, but  the  opinion  is  able,  learned, 
and  exhaustive,  and,  as  it  seems  to 
us,  convincing.  See,  also,  Sayre  v. 
Association,  1  Duv.  1-13.  In  Ladd  v. 
Manufacturing  Co.,  53  Tex.  172;  it 
was  also  decided,  in  effect,  tliat  a 
combination  among  the  compressing 
companies  in  the  city  of  Galveston, 
by  which  they  increased  the  prices 
for  compressing  cotton,  was  not  un- 
lawful. This  proposition  is  based 
distinctly  upon  the  ground  that  com- 
pressing cotton  is  not  a  public  busi- 
ness. On  the  other  hand,  it  is  held 
by  the  Supreme  Court  of  Illinois,  in 
More  v.  Bennett,  HO  111.  69,  29  N. 
E.  888,  that  an  association  of  ste- 
nographers, one  of  the  objects  of 
which  was    to    control    prices    to  be 


charged  for  work  by  its  members,  is 
an  illegal  combination,  and  that  its 
rules  would  rot  be  enforced  so  as  to 
sustain  an  action  of  one  member 
against  another.  The  cases  cited  all 
relate  to  combinations  between  car- 
riers or  dealers  in,  or  producers  of, 
staple  articles  of  commerce,  as  the 
opinion  itself  shows.  The  court  also 
quotes  from  Tiedenmn  on  Commer- 
cial Paper  (section  190),  as  follows: 
'All  combinations  of  capitalists  or  of 
workingmen  for  the  purpose  of  influ- 
encing trade  in  their  especial  favor 
by  raising  or  reducing  prices  are  so 
far  illegal  that  agreements  to  com- 
bine cannot  be  enforced.'  The  cases 
cited  by  this  author  do  not  sus- 
tain the  proposition.  Morris  Bun 
Coal  Co.  v.  Barclay  Coal  Co.,  G8  Pa. 
St.  173,  was  a  combination  to  affect 
the  price  of  coal.  Stanton  v.  Allen, 
5  Denio,  434,  was  an  association 
composed  of  the  proprietors  of  canal 
boats  to  regulate  the  rate  of  trans- 
portation. In  the  other  cases  cited — 
Brisbane  v.  Adams,  3  N.  Y.  129; 
Noyes  v.  Day,  14  VI.  384;  Doolin  v. 
Ward.  G  Johns.  194;  and  Thompson 
v.  Davies,  13  Johns.  112 — it  is  sim- 
ply held  that  agreements  to  prevent 
competition  at  auction  sales  are  con- 
trary to  public  policy  and  void." 

24.  Goldfield  Consul.  Mines  Co.  v. 
Goldfield  Miners'  Union,  159  Fed. 
500. 

25.  Allis  Chalmers     Co.     v.     Iron 


766 


Relating  to  Strikes,  Boycotts  and  Monopolies.     §  505a 

Bave  the  right  to  argue  or  discuss  with  new  employers  the  question 
whether  the  latter  shall  work  for  the  company  and  have  the  right 
to  persuade  them  if  thry  can.  In  presenting  the  matter,  however, 
strikers  have  no  right  to  use  force  or  violence,  or  to  terrorize  or 
intimidate  the  new  employees.  The  new  employee  has  the  right 
to  come  and  go  as  he  pleases,  without  ft ar  or  molestation,  and 
without  being  compelled  to  discuss  this  or  any  other  question,  and 
without  being  guarded  or  picketed;  and  persistent  and  continued 
and  objectionable  p:rsuasion  by  numbers  is  of  itself  intimidating 
and  not  allowable.26  And  an  injunction  will  lie  to  restrain  a 
trespass  by  employers  on  a  strike,  on  the  property  of  an  employer.27 
And  it  has  be:n  decided  that  an  employer  is  entitled  to  an  injunc- 
tion restraining  third  persons,  such  as  strikers,  from  interfering 
with  his  employees  against  their  consent,  seeking  by  threats  or 
persuasions  to  induce  the  latter,  who  are  under  a  contract  to  render 
service,  from  breaking  their  contract  and  quitting  the  service.2* 
And  a  suit  may  be  entertained  to  enjoin  a  combination  of  persons 
from  interfering  with  and  preventing  ship  owners  from  shipping  a 
crew,  on  the  ground  of  preventing  a  multiplicity  of  suits  at  law, 
and  for  the  reason  that  damages  for  interrupting  the  business  of 
pending  enterprises  and  voyage  must  in  their  nature  ba  con- 
jectural.29 The  question  as  to  the  right  of  employers  to  an  in- 
junction restraining  strikers  from  inducing  employees,  by  entreaty 
or  perusasion,  to  leave  the  service  of  their  employers  and  not  to 
enter  their  service  is  one  for  the  court  to  determine  in  its  dis- 
cretion in  view  of  the  facts  of  the  particular  case  which  it  has  been 
decided  is  not  reviewable  in  the  appellate  court.30 

§  505a.  Interference  with  access  to  premises. — Strikers,  while 
they  have  a  right  to  use  the  streets,  must  not  trespass  on  the  rights 
of  others  and  if  they  violate  the  right  of  access  of  the  owner  of  a 
house,  whether  it  be  a  dwelling  house,  store  house,  or  mill  house, 

Moulders'  Union,   150  Fed.   155,  171.  Cassidy,   G3   N.  J.   Eq.   759,   53   Atl. 

Per  Sanborn,  J.  230. 

26.  Union  Pac.  P.  Co.  v.  Puef,  120  29.  Hagan    v.    Ulindell,    56    Fed. 
Fed.   102.     Per  MePlierson,  J.  G96,  aff'g  54   Fed.  40. 

27.  New  York,  etc.,  P.  Co.  v.  Wen-  .30.    Reynolds    v.    Everett,    1-14    N. 
ger.  24  Abb.  N.  C.  (N.  Y.)  2(57,  note.  Y.  189,  39  N.  E.  72. 

28.  Jersey    City    Printing    Co.    v. 

707 


§  506        Relating  to  Stuikks,  Boycotts  and  Monopolies. 


such  owner  has  a  civil  action  and  may  also  abate  it  by  injunction 
in  equity  as  a  private  nuisance.81 

§  506.  What  trade  combinations  not  enjoined. — Tn  Minnesota 
it,  has  been  decided  that  the  right  which  one  mas  lms  f<>  refuse  to 
work  for  or  deal  with  another  man  or  class  of  men,  any  number  of 
men  may  agree  to  exercise  jointly,  unless  he  or  they  are  charged 
by  contract  Or  by  law  with  some  public  duty.  A  large  number 
of  retail  lumber  dealers  formed  a  voluntary  association,  by  which 
they  mutually  agreed  that  they  would  not  deal  with  any  manu- 
facturer or  wholesale  dealer  who  should  sell  lumber  directly  to 
consumers,  no|.  dealers,  at  any  point  wli  re  a  member  of  the  asso- 
ciation was  carrying  on  a  retail  yard,  and  provided  in  their  by  laws 
that,  whenever  any  wholesale  dealer  or  manufacturer  made  any 
such  sale,  their  secretary  should  notify  all  the  members  of  the 
fact.  The  plaint  ill'  having  made  such  a  sale,  the  secretary  threat- 
ened to  send  notice  of  the  fact,  as  provided  in  the  by-laws,  to  all 
the  members  of  the  association.  It  was.  held  not  actionable,  and 
no  ground  for  an  injunction.1" 

31.  Amorionn  Stool  &  Wiro  Co.  v. 
Wire  Drawers  &  i>.  M.  Unions,  90 
Fed  608.     Judge  Hammond  said  in 

lliis  case:     "  This  is  sound  law,  from 

which  no  unruly  force  of  public  pol- 
Icy  should  carry  a  judge  any  dis- 
tance  at  nil,  no  matter  how  ably  it  is 
urged  upon  him  by  learned  and  elo 

<|uoiit  counsel  pleading  for  the  rights 
of  labor  as  against  capital,  corpora- 
tions, and  despised  foreigners,  who 
organi/.e  'scabs'  to  resist  the  strik- 
ers in   favor  of  odious  trusts." 

32.  Bohu    MTg    Co.    v.    Ilollis,    f>4 

Minn.    'J'i:t,    r>c>    N.    W.    1110,    per 

Mitchell,  J.:  "The  case  presents 
one  phase  of  a  subject  which  is  likely 
to  be  one  of  the  most  important  ami 
difficult  which  will  confront  the 
courts  during  the  next  quarter  of  a 
century,  This  is  the  age  Of  associa- 
tions and  unions,  in  all  departments 
of  labor  and  business,  for  purposes  of 

mutual  benefit  and  protection.  Con- 
fined to  proper  limits,  both  as  to  end 


and  moans,  they  are  not  only  lawful, 
but  laudable.  Carried  beyond  those 
limits,  they  are  liable  to  become  dan- 
gerous agencies  for  wrong  and  op- 
pression. Beyond  what  limits  these 
associations  or  combinations  cannot 
go,  without  interfering  with  the  le- 
gal rights  of  others,  is  the  problem 
which,  in  various  phases,  the  courts 
will  doubtless  be  frequently  called  to 
pass  upon.  There  is,  perhaps,  dan- 
ger that,  influenced  by  such  terms  of 
illusive  meaning  as  '  monopolies,' 
'  trusts,'  '  boycotts/  '  strikes,'  and 
the  like,  they  may  be  led  to  transcend 
the  limits  of  their  jurisdiction,  and, 
like  the  Court  of  King's  Bench  in 
Bagg's  Case,  11  Coke,  98a,  assume 
that,  on  general  principles,  they  have 
authority  to  correct  or  reform  every- 
thing which  they  may  deem  wrong, 
or,  as  Lord  Kllsmere  puts  it,  '  to 
manage  the  state.'  But  whatever 
doubts  or  difficulties  may  arise  in 
other   cases,   presenting  other    phases 


T.R 


Relating  to  Strikes,  Boycotts  and  Monopolies.       §  507 


§  507.  Lawful  trade  combinations. — Wli'-re  ship  owners  in 
order  to  secure  a  carrying  trade  exclusively  for  themselves  and  at 
profitable  rates  formed  an  association  and  agreed  that  the  number 
of  ships  to  be  sent  by  members  of  the  association  to  the  loading 
port,  the  division  of  cargoes,  and  the  freights  to  be  demanded 
should  be  the  subject  of  regulation;  that  a  rebate  of  five  per  cent. 
on  the  freights  should  be  allowed  to  all  shippers  who  shipped  only 


of  the  general  subject  involved  here, 
it  seems  to  us  that  there  can  be  none 
on  the  facts  of  the  present  case. 
Both  the  affidavits  and  brief  in  be- 
half of  the  plaintiff  indulge  in  a 
great  deal  of  strong,  and  even  exag- 
gerated, assertion,  and  in  many 
words  and  expressions  of  very  in- 
definite and  illusive  meaning, 
BUcb  as  '  wreck,'  '  coerce,'  '  ex- 
tort,' '  conspiracy,'  '  monopoly,' 
'  drive  out  of  business,'  and  the 
like  This  looks  very  formidable, 
but  in  law,  as  well  as  in  mathemat- 
ics, it  simplifies  things  very  much  to 
reduce  them  to  their  lowest  terms. 
It  is  conceded  that  retail  lumber 
yards  in  the  various  cities,  towns 
and  villages  are  not  only  a  public 
convenience,  but  a  public  necessity; 
also,  that,  to  enable  the  owners  to 
maintain  these  yards,  they  must  sell 
their  lumber  at  a  reasonable  profit. 
It  also  goes  without  saying  that  to 
have  manufacturers  or  wholesale 
dealers  sell  at  retail,  directly  to  con- 
sumers, in  the  territory  upon  which 
the  retail  dealer  depends  for  his  cus- 
tomers, injuriously  affects  and  de- 
moralizes his  trade.  This  is  so  well 
recognized  as  a  rule  of  trade,  in 
every  department,  that  generally 
wholesale  dealers  refrain  from  sell- 
ing at  retail  within  the  territory 
from  which  their  customers  obtain 
their  trade.  Now,  when  reduced  to 
its  ultimate  analysis,  all  that  the  re- 


tail lumber  dealers,  in  this  case, 
have  done,  is  to  form  an  association 
to  protect  themselves  from  sales  by 
wholesale  dealers  or  manufacturers, 
directly  to  consumers  or  other  non- 
dealers,  at  points  where  a  member  of 
the  association  is  engaged  in  the  re- 
tail business.  The  means  adopted  to 
effect  this  object  are  simply  these: 
They  agree  among  themselves  that 
they  will  not  deal  with  any  wholesale 
dealer  or  manufacturer  who  sells  di- 
rectly to  customers,  not  dealers,  at  a 
point  where  a  member  of  the  associa- 
tion is  doing  business,  and  provide 
for  notice  being  given  to  all  their 
members  whenever  a  wholesale  dealer 
or  manufacturer  makes  any  such 
sale.  That  is  the  head  and  front  of 
defendant's  offense.  It  will  be  ob- 
served that  defendants  were  not  pro- 
posing to  send  notices  to  any  one  but 
members  of  the  association.  There 
was  no  element  of  fraud,  coercion  or 
intimidation,  cither  towards  plaintiff 
or  the  members  of  the  association. 
True,  the  secretary,  in  accordance 
with  section  3  of  the  by-laws,  made 
a  demand  on  plaintiff  for  10  per  cent, 
on  the  amount  of  the  two  sales.  But 
this  involved  no  element  of  coercion 
or  intimidation,  in  the  legal  sense  of 
those  terms.  It  was  entirely  optional 
with  plaintiff  whether  it  would  pay 
or  not.  If  it  valued  the  trade  of  the 
members  of  the  association  higher 
than  that  of  non-dealers  at  the  same 


769 


49 


§  507       Relating  to  Strikes,  Boycotts  and  Monopolies. 


with  members.;  and  that  agents  of  members  should  be  prohibited 
on  pain  of  dismissal  from  acting  in  the  interest  of  competing  ship 
owners ;  and  when  plaintiffs  who  were  ship  owners  excluded  from 
the  association,  sent  ships  to  the  loading  port  to  obtain  cargoes, 
the  associated  owners  thereupon  sent  more  ships  and  underbid 
plaintiffs  so  that  plaintiffs  were  obliged-  to  carry  at  unremunerative 
rates;   and  threatened  to  dismiss  certain  agents   if  they  loaded 


points,  it  would  probably  conclude  to 
pay;  otherwise,  not.  It  cannot  be 
claimed  that  the  act  of  making  this 
demand  was  actionable;  much  less, 
that  it  constituted  any  ground  for 
an  injunction;  and  hence  this  matter 
may  be  laid  entirely  out  of  view. 
Nor  was  any  coercion  proposed  to  be 
brought  to  bear  on  the  members  of 
the  association,  to  prevent  them 
from  trading  with  the  plaintiff.  Af- 
ter they  received  the  notices,  they 
would  be  at  entire  liberty  to  trade 
with  plaintiff,  or  not,  as  they  saw  fit. 
By  the  provisions  of  the  by-laws,  if 
they  traded  with  the  plaintiff,  they 
were  liable  to  be  'expelled;'  but  this 
simply  meant  to  cease  to  be  membei's. 
It  was  wholly  a  matter  of  their  own 
free  cboice,  which  they  preferred — to 
trade  with  the  plaintiff,  or  to  con- 
tinue members  of  the  association. 
So  much  for  the  facts,  and  all  that 
remains  is  to  apply  to  them  a  few 
well-settled,  elementary  principles  of 
law: 

"  1.  The  mere  fact  that  the  pro- 
posed acts  of  the  defendants  would 
have  resulted  in  plaintiff's  loss  of 
gains  and  profits  does  not,  of  itself, 
render  those  acts  unlawful  or  action- 
able. That  depends  on  whether  the 
acts  are,  in  and  of  themselves,  un- 
lawful. '  Injury,'  in  its  legal  sense, 
means  damage  resulting  from  an  un- 
lawful act.  Associations  may  be  en- 
tered into,  the  object  of  which  is  to 


adopt  measures  that  may  tend  to  di- 
minish the  gains  and  profits  of  an- 
other, and  yet,  so  far  from  being  un- 
lawful, they  may  be  highly  meritori- 
ous. Com.  v.  Hunt,  4  Mete.  (Mass.) 
Ill;  Mogul  Steamship  Co.  v.  Mc- 
Gregor, 21  Q.  B.  Div.  544. 

"  2.  If  an  act  be  lawful — one  that 
the  party  has  a  legal  right  to  do — 
the  fact  that  he  may  be  actuated  by 
an  improper  motive  does  not  render 
it  unlawful.  As  said  in  one  case, 
'  the  exercise  by  one  man  of  a  legal 
right  cannot  be  a  legal  wrong  to  an- 
other,' or,  as  expressed  in  another 
case,  '  malicious  motives  make  a  bad 
case  worse,  but  they  cannot  make 
that  wrong  which,  in  its  own  essence, 
is  lawful.'  Heywood  v.  Tillson,  75 
Me.  225;  Phelps  v.  Nowlen,  72  N.  Y. 
39;  Jenkins  v.  Fowler,  24  Pa.  St. 
308. 

"  3.  To  enable  the  plaintiff  to  main- 
tain this  action,  it  must  appear  that 
defendants  have  committed,  or  are 
about  to  commit,  some  unlawful  act, 
which  will  interfere  with,  and  inju- 
riously affect,  some  of  its  legal 
rights.  We  advert  to  this  for  the 
reason  that  counsel  for  plaintiff  de- 
votes much  space  to  assailing  this 
association  as  one  whose  object  is  un- 
lawful because  in  restraint  of  trade. 
We  fail  to  see  wherein  it  is  subject 
to  this  charge;  but,  even  if  it  were, 
this  would  not,  of  itself,  give  plain- 
tiff a  cause  of  action.     No  case  can 


770 


Relating  to  Steikes,  Boycotts  and  Monopolies.       §  507 

plaintiffs'  ships  and  circulated  a  notice  thait  the  rebate  of  five  per 
cent,  would  not  be  allowed  to  any  person  who  shipped  on  plaintiffs' 
vessels,  it  was  held  they  were  not  subject  to  injunction,  as  their 
acts  were  done  with  the  lawful  object  of  extending  their  trade  and 
increasing  their  profits  for  the  accomplishment  of  which  they  had 
not  used  any  unlawful  means,  but  it  was  assumed  their  acts  would 
have  been  unlawful  if  done  merely  to  injure  the  plaintiffs.33 


be  found  in  which  it  was  ever  held 
that,  at  common  law,  a  contract  or 
agreement  in  general  restraint  of 
trade  was  actionable  at  the  instance 
of  third  parties,  or  could  constitute 
the  foundation  for  such  an  action. 
The  courts  sometimes  call  such  con- 
tracts '  unlawful '  or  '  illegal,'  but  in 
every  instance  it  will  be  found  that 
these  terms  were  used  in  the  sense, 
merely,  of  '  void  '  or  '  unenforceable  ' 
as  between  the  parties;  the  law  con- 
sidering the  advantage  so  imposed 
upon  the  contract  a  sufficient  protec- 
tion to  the  public.  Mogul  Steamship 
Co.  v.  McGregor,  23  Q.  B.  Div.  598. 

"  4.  What  one  man  may  lawfully 
do  singly,  two  or  more  may  lawfully 
agree  to  do  jointly.  The  number  who 
unite  to  do  the  act  cannot  change  its 
character  from  lawful  to  unlawful. 
The  gist  of  a  private  action  for  the 
wrongful  act  of  many  is  not  the  com- 
bination or  conspiracy,  but  the  dam- 
age done  or  threatened  to  the  plain- 
tiff by  the  acts  of  the  defendants.  If 
the  act  be  unlawful,  the  combination 
of  many  to  commit  it  may  aggravate 
the  injury,  but  cannot  change  the 
character  of  the  act.  In  a  few  cases 
there  may  be  some  loose  remarks  ap- 
parently to  the  contrary,  but  they 
evidently  have  their  origin  in  a  con- 
fused and  inaccurate  idea  of  the  law 
of  criminal  conspiracy,  and  in  fail- 
ing to  distinguish  between  an  unlaw- 
ful act  and  a  criminal  one.     It  can 


never  be  a  crime  to  combine  to  com- 
mit a  lawful  act,  but  it  may  be  a 
crime  for  several  to  conspire  to  com- 
mit an  unlawful  act,  which,  if  done 
by  one  individual  alone,  although  un- 
lawful, would  not  be  criminal.. 
Hence,  the  fact  that  the  defendants 
associated  themselves  together  to 
do  the  act  complained  of  is  wholly 
immaterial  in  this  case.  We  have  re- 
ferred to  this  for  the  reason  that 
counsel  has  laid  great  stress  upon 
the  fact  of  the  combination  of  a  large 
number  of  persons,  as  if  that,  of  it- 
self, rendered  their  conduct  action- 
able. Bowen  v.  Matheson,  14  Allen, 
499;  Mogul  Steamship  Co.  v.  Mc- 
Gregor, 23  Q.  B.  Div.  598;  Parker  v. 
Huntington,  2  Gray,  124;  Wellington 
v.  Small,  3  Cush.  145;  Payne  v.  Rail- 
way Co.,  13  Lea,  507." 

83.  Mogul  Steamship  Co.  v.  Mc- 
Gregor (1892),  App.  Cas.  25,  aff'g 
23  Q.  B.  D.  598,  per  Lord  Morris: 
"  All  the  acts  done  and  the  means 
used  by  the  defendants  were  acts  of 
competition  for  the  trade.  There  was 
nothing  to  disturb  any  existing  con- 
tract of  the  plaintiffs  or  to  induce 
any  one  to  break  such.  Their  action 
was  aimed  at  making  it  unlikely  that 
any  one  would  enter  into  contracts 
with  the  plaintiffs,  the  defendants  of- 
fering such  competitive  inducements 
as  would  probably  prevent  them.  The 
use  of  rhetorical  phrases  in  the  cor- 
respondence   cannot    affect    the    real 


771 


i§  507a     Relating  to  Strikes,  Boycotts  and  Monopolies. 

§  507a.  Conspiracy  generally. — Where  two  or  more  persona 
conspire  and  confederate  together  for  the  purpose  of  destroying 
or  injuring  the  business  of  another,  or  doing  violence  to  his  prop- 
erty or  property  rights,  and  it  is  clearly  made  to  appear  that  the 
injury  is  threatened  and  imminent,  and  will  become  irreparable  to 
the  suitor,  an  injunction  will  lie  to  restrain  the  conspirators.34  As 
to  enjoining  acts  on  the  ground  of  a  conspiracy  it  is  said  that  "  The 
authorities  all  agree  that  a  court  of  equity  will  not  hesitate  to  avail 
itself  of  the  extraordinary  process  of  injunction,  when  the  circum- 
stances of  the  particular  case  require  it,  in  order  to  protect  rights 
of  property  against  irreparable  damage  done  by  wrongdoers.  Such 
process,  however,  should  be  issued  with  great  caution  and  circum- 
spection." 35  So  in  a  case  in  Wisconsin  it  is  declared  that  while 
persons  have  a  right  to  combine  for  the  purpose  of  promoting  their 
individual  welfare  in  any  legitimate  way,  yet  if  the  purpose  of 
the  combination  is  to  inflict  injury  on  another,  and  injury  results, 
a  wrong  is  committed  upon  such  other  for  which  he  may  recover 
damages,  notwithstanding  such  purpose,  if  formed  and  executed 
by  an  individual,  would  not  be  actionable  and  in  such  a  case  per- 
sons who  are  injured  by  the  unlawful  combinations  may  maintain 


substance  and  meaning  of  it.    Again,  464.    See,  also,  Rocky  Mountain  Bell 

what  one  trader  may  do  in  respect  of  Teleph.  Co.  v.  Montana  Federation  of 

competition    a   body    of    traders    can  Labor,  156  Fed.  809;   Sailors'  Union 

lawfully  do;    otherwise  a  large  cap-  v.   Hammond  Lumber   Co.,    156   Fed. 

italist  could   do  what  a  number   of  450;    National   Teleph.   Co.   v.   Kent, 

small  capitalists  combining  together  156  Fed.   173. 

could  not  do,  and  thus  a  blow  would  Conspiracy  defined. — A  con- 
be  struck  at  the  very  principle  of  co-  spiracy  is  a  combination  between  two 
operation  and  joint  stock  enterprise.  or  more  persons,  with  the  unity  of 
I  entertain  no  doubt  that  a  body  of  design  for  a  common  purpose  to  do 
traders  whose  motive  is  to  promote  an  unlawful  act,  or  a  lawful  act  by 
their  own  trade  can  combine  to  ac-  unlawful  means,  and  cannot  be  sus- 
quire,  and  thereby  in  so  far  as  to  tained  by  proof  tending  to  establish 
injure  the  trade  of  competitors,  pro-  merely  separate  causes  of  action 
vided  they  do  no  more  than  is  inci-  against  several  defendants.  Russell  & 
dental  to  such  object  and  use  no  Sons  v.  Stampers  &  G.  L.  L.  Union, 
unlawful  means."  57  Misc.  R.    (N.  Y.)    96,  107  N.  Y. 

34.  Longshore     Printing     Co.     v.  Supp.  303. 
Howell,  26  Oreg.   527,   38  Pac.   547,  35.  Longshore     Printing     Co.     v. 

46   Am.   St.  Rep.  640,   28   L.  R.   A.  Howell,  26  Oreg.   527,   38  Pac.  547, 

772 


Relating  to  Strikes,  Boycotts  and  Monopolies.     §  507b 

an  action  to  restrain  the  continuation  of  the  operations  of  the  con- 
spiracy when  irreparable  injury  will  result  and  legal  remedies 
will  prove  inadequate  or  a  multiplicity  of  suits  may  be  necessary.36 
And  in  a  recent  case  in  New  York  it  is  said  that  a  person's  busi- 
ness, when  it  is  conducted  according  to  law,  is  a  property  right, 
and  any  unlawful  interference  with  or  any  interruption  of  that 
business  is  an  injury  to  a  property  right,  and  a  court  of  equity  has 
jurisdiction  to  restrain  by  injunction  the  carrying  out  of  any  con- 
spiracy to  destroy  or  injure  such  property,  and  the  court  is  not 
deprived  of  this  power  because  of  the  fact  that  the  acts  are  criminal 
and  could  be  prosecuted  criminally.37 

§  507b.  Conspiracy  continued — Conspiracy  to  induce  em- 
ployees, who  are  in  no  manner  dissatisfied  with  the  terms  and 
conditions  of  their  employment,  to  strike,  to  the  injury  of  the 
employer,  may  be  enjoined.38  Where  the  members  of  a  labor  union 
conspire  to  induce  employees  to  break  their  contracts  with  their 
employer,  or  to  leave  his  employ,  the  court  has  power  to  interfere 
by  injunction.  But  if  it  appear  that  the  workmen  upon  their 
individual  responsibility  desire  to  break  their  contracts  and  quit 
their  employment  because  of  alleged  grievances  or  any  other  reason 
a  court  of  equity  will  not  interfere.39  And  a  conspiracy  to  prevent 
the  loading  or  unloading  of  complainants'  steamships,  except  by 
such  labor  as  might  be  acceptable  to  the  defendants,  may  be  en- 
joined.40 Members  of  a  labor  union  will  also  be  restrained  by 
injunction  from  carrying  out  a  conspiracy  to  compel  the  members 
of  another  union  to  join  the  former  union  where  in  the  accomplish- 
ment of  such  purpose  strikes  and  boycotts  are  threatened  to  induce 
the  complainants'  employers  to  persuade  them  to  join,  or  failing  in 
that  to  discharge  them,  although  no  injury  to  property  is  threatened 

46   Am.   St.   Rep.   640,   28   L.  R.   A.  38.  United  States  t.  Hoggerty,  116 

464.     Per  Wolverton,  J.  Fed.    510;    United    States   v.    Weber, 

36.  Hawarden  v.  Youghiogheny  &  114  Fed.  950.  See  Sailors'  Union  v. 
L.  C.  Co.,  Ill  Wis.  545,  87  N.  W.  Hammond  Lumber  Co.,  156  Fed.  450. 
472.  39.  Delaware,  L.  &  W.  R.  Co.  v. 

37.  New   York   Cent.   Iron   Works  Switclimens'  Union,  158  Fed.  541. 
Co.  v.  Brennan,  105  N.  Y.  Supp.  865,  40.  Elder  v.   Wliitesides,   72   Fed. 
869.     Per  Clarke,  J.  724. 

773 


§  507b     Relating  to  Stkikes,  Boycotts  and  Monopolies. 

or  any  acts  of  personal  violence.41  And  where  the  members  of  two 
labor  organizations  entered  into  a  conspiracy  to  prevent  the  use 
of  a  certain  machine  by  a  manufacturer  which  object  was  to  be 
accomplished  by  notifying  the  manufacturer's  customers  not  to 
purchase  the  article  made  by  such  machines  and  to  induce  indi- 
viduals and  members  of  other  organizations  not  to  purchase  goods 
packed  therein,  it  was  decided  that  the  plaintiff  was  entitled  to  an 
injunction  against  the  execution  of  such  conspiracy.42  And  a  com- 
bination of  mercantile  dealers  to  compel  another  dealing  in  similar 
goods  to  sell  at  prices  fixed  by  it,  or,  upon  his  refusal  so  to  do,  to 
prevent  those  of  whom  its  members  are  purchasing  customers  from 
selling  goods  to  him,  is,  upon  general  legal  principles,  contrary  to 
public  policy  and  void,  and  the  members  of  such  a  combination 
may,  collectively  or  individually,  be,  by  appropriate  injunction, 
restrained  from  carrying  into  effect  such  a  purpose.43  But  a  strike 
by  concerted  action  followed  by  an  agreement  that  the  strikers  will 
take  peaceable  means  to  induce  other  employees  to  join  the  union 
and  strike,  it  being  expressly  resolved  that  under  no  circumstances 
shall  any  striker  endeavor  by  violence  or  intimidation  to  influence 
any  workman,  does  not  constitute  a  conspiracy.41  And  where  em- 
ployers of  men  who  had  left  work  because  of  a  refusal  to  pay  higher 
wages,  sent  their  names  to  other  manufacturers  in  a  similar  line 
of  business  in  such  city,  stating  that  the  men  named  had  left  upon 
a  strike  and  it  was  alleged  that  such  manufacturers  entered  into  a 
conspiracy  not  to  employ  the  strikers,  intending  by  such  means 
to  compel  them  to  go  without  work  or  to  return  to  work  for  their 
former  employer  at  such  wages  as  he  might  offer,  the  court  refused 
to  enjoin  the  defendants  from  the  execution  of  such  conspiracy, 
it  being  declared  that  there  were  no  approved  precedents  in  equity 
authorizing  the  enjoining  of  such  a  conspiracy.45 

41.  Plant  v.  Woods,  176  Mass.  492,  44.  Karges  Furn.   Co.  v.  Amalga- 
57  N.  E.   1011,  51  L.  R.  A.  339.  mated  Woodworkers.  165  Tnd.  421.  75 

42.  Hopkins    v.    Oxley    Stave    Co.,'  N.  E.  877,  2  L.  R.  A.  (N.  S.)  788. 
83  Fed.  912,  28  C.  C.  A.  99.  45.  Worthington    v.    Waring,    157 

43.  Brown    v.    Jacobs    Pharmacy  Mass.  421,  32  N.  E.  744,  20  L.  R.  A. 
Co.,   115  Ga.  429.   41   S.   E.  553,  90  342. 

Am.  St.  Rep.  126,  57  L.  R.  A.  547. 

774 


Relating  to  Strikes,  Boycotts  and  Monopolies.     §  507c 

§  507c.  Boycotts  generally. — A  boycott,  the  object  of  which 
is  to  intimidate  and  force  a  person  or  persons  to  comply  with  the 
demand  of  certain  other  persons  and  which  in  its  accomplishment 
involves  an  injury  to  the  business  of  the  one  against  whom  it  ia 
directed  by  attempting  to  intimidate  and  prevent  third  parties  not 
to  deal  with  such  person  in  a  business  way,  is  an  unlawful  inter- 
ference with  the  business  of  such  person,  which  may  be 
enjoined46  though  unaccompanied  by  violence.47  So  an  in- 
junction was  granted  to  restrain  a  boycott  by  a  labor  union 
which  threatened  to  drive  an  employer  out  of  business  and 
which  in  furtherance  of  such  action  notified  customers  of  such 
employer,  who  were  also  employers,  not  to  purchase  goods  of  him 
under  threats  of  strikes  against  them.48  And  where  members  of 
labor  unions  declared  a  boycott  against  machine-made  packages, 
or  goods  packed  in  them,  it  was  held  that  the  term  "  boycott  "  im- 
plied a  general  prescription  of  all  articles  so  manufactured  and  the 
goods  packed  in  them  and  that  the  complainant  was  entitled  to  an 
injunction  against  the  defendants.49  And  where  a  combination  and 
concert  of  action  of  labor  unions  against  a  manufacturer  forced 
customers  of  his,  either  by  threats  or  strikes  against  them,  to  sign 
contracts  putting  an  end  to  future  business  with  him,  and 
notices    and    warnings    to    those    who    might    become    his    cusr- 

46.  Shine  v.  Fox  Bros.  Mfg.  Co.,  Commonwealth,  84  Va.  927,  6  S.  E. 

156  Fed.  357 ;  Seattle  Brew.  &  M.  Co.  620,  10  Am.  St.  Rep.  895. 

v.  Hansen,  144  Fed.   1011;  Loewe  v.  Origin  of  word  "  boycott."    See 

California  State  Federation,  139  Fed.  State  v.  Glidden,  55  Conn.  46,  8  Atl. 

71;    Beck   v.  Railway  Teamsters'   P.  890,   9   Am.  St.  Rep.  689. 

Union,  118  Mich.  497,  77  N.  W.  13,  A   boycott   by   putting   on   an 

42  L.  R.  A.  407 ;  Purvis  v.  Local  No.  "  nnf  air    list  "    may    be    enjoined. 

500,  214  Pa.   St.   348,   63  Atl.   585;  Wilson  v.  Hey,  232  HI.  389,  83  N.  E. 

Jensen  v.  Cooks  &  Waiters'  Union.  39  928. 

Wash.  531,  81  Pac.  1009.  47.  Thomas    v.    Rnilway    Co.,    62 

Tbe  essential  idea  of  a  boycott  Fed.  818.  cited  in  Oxley  Stave  Co.  v. 

is    a  confederation,   generally  secret,  Coopers'     International     Union,     72 

of  many  persons,  whose  intent  is  to  Fed.    695,   699. 

injure  another,  by  preventing  any  and  48.  Purvis  v.  Local  Union  No.  500, 

all  persons  from  doing  business  with  214  Pa.  St.  348,  63  Atl.  585. 

him,   through   fear   of   incurring  the  49.  Oxley   Stave   Co.    v.    Coopers* 

displeasure,    persecution    and    venge-  International  Union,  72  Fed.  695. 
ance  of  the  conspirators.     Crump  v. 

775 


§508       Relating*  to  Stkikes,  Boycotts  am>  Monopolies. 

tonicrs  in  the  future  were  also  given,  it  was  decided  that  the 
complainant  was  entitled  to  an  injunction/'0  Airain,  in  a  recent 
case  in  Massachusetts  it  is  decided  that  an  employer  is  entitled  to 
an  injunction  restraining  the  members  of  labor  unions  from  com- 
bining together  to  further  the  strike  which  unjustifiably  interferes 
with  his  business,  and  from  doing  any  acts  whatever,  peaceful  or 
otherwise,  in  furtherance  thereof,  including  the  payment  of  strike 
benefits  and  putting  the  plaintiffs  on  an  unfair  list.51  In  Missouri, 
however,  under  the  provisions  of  the  Bill  of  Ragkte  that  "  no  law 
shall  be  passed  impairing  the  freedom  of  speech,  that  every  person 
shall  be  free  to  say,  write  or  publish  whatever  he  will  on  any  sub- 
ject being  responsible  for  all  abuse  of  that  liberty  "  52  and  that  "  no 
person  shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law  "  53  it  is  declared  that  the  right  of  a  person  to  speak, 
write  or  publish  is  guaranteed  against  any  interference  either  by 
the  Legislature  or  the  courts  which  seeks  to  prevent  it  and  that  the 
fact  that  such  privilege  or  right  is  used  for  the  purpose  of  boycotting 
the  business  of  another  confers  upon  a  court  of  equity  no  power  to 
enjoin  its  exercise.54 

§  508.  Restraining  boycott  of  newspapers. — A  combination  by 
a  trades  union  to  boycott  a  newspaper  for  refusing  to  unionize  its 
office  is  illegal  and  will  be  enjoined,  as  will  also  the  publication  and 
circulation  of  editorials,   posters   and  circulars  in  pursuance  of 

50.  Shine  v.  Fox  Bros.  Mfg.  Co.,  in  securing  redress  of  such  wrongs, 
156   Fed.  357.  what   becomes    of    free    speech,    and 

51.  Reynolds  v.  Davis  (Mass.  what  of  personal  liberty?  The  fact 
1908)    84  N.  E.  457.  that  in  exercising  that  freedom  they 

52.  §    14,   Bill  of  Rights.  thereby  do  plaintiff  an  actionable  in- 

53.  §  30,  Bill  of  Rights.  jury,   such   fact  does  not   go   a  hair 

54.  Clothing  Co.  v.  Watson,  168  towards  a  diminution  of  tlie  right  of 
Mo.  133,  67  S.  W.  391,  56  L.  R.  A.  free  speech,  etc.,  for  the  exercise  of 
951,  90  Am.  St.  Rep.  440.  The  court  which  if  resulting  in  such  injury, 
said,  per  Sherwood,  J.:  "If  these  the  Constitution  makes  them  ex- 
defendants  are  not  permitted  to  tell  pressly  responsible."  The  court,  how- 
the  story  of  their  wrongs,  or.  if  you  ever,  declared  that  it  did  not  pass 
please,  their  supposed  wrongs,  by  upon  questions  not  involved  in  the 
word  of  mouth  or  with  pen  or  print,  record  such  as  power  of  a  court  of 
and  to  endeavor  to  persuade  others  equity  to  enjoin  destruction  of  prop- 
to  aid  them  by  all  peaceable  means,  erty,  or  the  making  of  threats  either 

776 


Relating  to  Strikes,  Boycotts  and  Monopolies.     §  508a 


such  combination.55  And  where  the  acts  of  a  labor  organization 
in  boycotting  a  newspaper  threatened  a  continuing  injury  and 
probable  ruin  of  the  complainant's  business,  the  legal  remedy 
for  which  was  inadequate  and  involved  a  number  of  suits,  the  court 
issued  an  injunction  restraining  the  defendants  from  doing  such 
acts.56 

§  508a.  Railroad  strikes  affecting  interstate  commerce  and 
mails;  right  of  national  government. — Where  the  business  is  that 
of  handling  property  in  the  course  of  transportation  and  is  a 
matter  of  interstate  commerce,  the  Federal  court  may  enjoin  any 


of  injury  to  property  or  of  personal 
violence." 

55.  Casey  v.  Cincinnati  Typo. 
Union,  45  Fed.  135.  In  this  case  the 
Bulletin,  the  organ  of  the  union,  de- 
clares that  "  the  boycott  is  still  on 
and  will  be  until  the  proprietor  of  the 
rat  sheet  employs  union  men."  It 
requests  all  "  K.  of  L.  assemblies, 
unions,  and  workingmen,  to  bear  in 
mind  that  Mr.  Casey  refused  to  em- 
ploy or  in  any  way  recognize  organ- 
ized labor."  It  asks  their  aid  in 
compelling  complainant  to  recognize 
the  rights  of  labor  by  withdrawing 
their  patronage  from  his  paper,  and 
if  possible  let  him  know  why.  It  calls 
upon  them  not  to  patronize  any  mer- 
chants who  advertise  in  complain- 
ant's newspaper,  and  if  they  see  the 
newspaper  in  any  place  of  business 
to  refuse  to  buy  goods  unless  the 
merchant  immediately  stops  the 
"rat"  sheet.  Sage,  J.:  "No  case 
has  been  cited  where  upon  a  proper 
showing  of  facts  an  unsuccessful  ap- 
peal has  been  made  to  a  court  of 
chancery  to  restrain  a  boycott.  At 
common  law  an  agreement  to  control 
the  will  of  employers  by  improper 
molestation  was  an  illegal  con- 
spiracy. In  New  York  it  has  been 
held  that  the  boycott  is  a  conspiracy 


in  restraint  of  trade.  People  v.  Wil- 
zig,  4  N.  Y.  Crim.  Rep.  403;  People 
v.  Kostka,  4  N.  Y.  Crim.  Rep.  429. 
So,  also,  in  Virginia:  Common- 
wealth v.  Shelton,  11  Va.  Law  Jour. 
324.  And  in  Connecticut:  State  v. 
Glidden,  55  Conn.  46.  In  Emack  v. 
Kane,  34  Fed.  47,  the  issuing  of  cir- 
culars threatening  to  sue  for  infringe- 
ment persons  dealing  in  a  compet- 
itor's patented  article  was  enjoined, 
it  appearing  that  the  charge  of  in- 
fringement was  not  made  in  good 
faith,  but  to  injure  complainant's 
business.  Blodgett,  J.,  said:  "Re- 
dress for  a  mere  personal  slander  or 
libel  may  properly  be  left  to  courts 
of  law,  because  no  falsehood  how- 
ever malicious  can  wholly  destroy  a 
man's  reputation  with  those  who 
know  him;  but  statements  and 
charges  intended  to  frighten  away  a 
man's  customers  may  ruin  him  finan- 
cially, with  no  adequate  remedy  if  a 
court  of  equity  cannot  afford  protec- 
tion by  its  restraining  writ " — dis- 
tinguishing Kidd  v.  Horry,  28  Fed. 
773;  Wheel  Co.  v.  Bemis,  29  Fed.  95. 

See  Matthews  v.  Shankland,  25 
Misc.  R.  (N.  Y.)  604,  56  N.  Y.  Supp. 
123. 

56.  Barr  v.  Essex  Trades  Council, 
53  N.  J.  Eq.  101,  30  Atl.  881.    In  this 


777 


§  508a     Relating  to  Strikes,  Boycotts  and  Monopolies. 

interference  with  or  obstruction  of  such  business.57  In  the  exerciso 
of  the  powers  over  interstate  commerce  and  the  transmission  of  the 
mail  which  are  committed  to  the  government  of  the  United  States, 
it  is  competent  for  the  nation  not  only  to  forcibly  remove  all 
obstructions  to  the  passage  of  such  commerce  and  the  carrying  of 
the  mails,  but  it  may  also  appeal  to  the  civil  courts  for  an  inquiry 
and  determination  as  to  the  existence  and  character  of  such  alleged 
obstructions  and  to  invoke  the  aid  of  such  courts  for  the  removal  or 
the  restraining  of  the  same,  if  they  are  found  to  exist.  This  con- 
clusion defining  the  authority  of  the  national  government  in  such 
matters  was  reached  in  the  Debs  case,59  in  which  case  it  was  alleged 
that  an  obstruction  to  interstate  commerce  and  carrying  of  mails 
existed,  that  there  was  a  combination  and  conspiracy  to  subject 
the  control  of  the  interstate  transportation  of  persons  and  property 
as  well  as  the  carrying  of  the  mails  to  the  will  of  the  conspirators 
and  in  which  an  injunction  was  prayed  for  to  restrain  such  obstruc- 
tion and  to  prevent  carrying  into  effect  such  conspiracy. 


case  one  injunction  was  held  proper 
which  restrained  the  defendants  from 
distributing  or  circulating  any  circu- 
lars, printed  resolutions  or  other  pub- 
lications containing  threats  or  ap- 
peals against  the  "  Newark  Times,  or 
the  complainants,  its  publishers,  with 
the  design  and  tending  to  interfere 
with  their  business  in  publishing  said 
paper,  and  from  making  any  threats 
or  using  any  intimiaation  to  the 
dealers  or  advertisers  in  such  news- 
paper tending  to  cause  them  to  with- 
draw their  business  from  such  news- 
paper. 

57.  Knudsen  v.  Benn,  123  Fed. 
636. 

The  Act  of  July  2,  1890,  which 
enlarged  the  jurisdiction  of  the  fed- 
eral courts,  and  authorized  them  to 
apply  the  restraining  power  of  the 
law  for  the  purpose  of  checking  and 
restraining  all  lawless  interference 
with  the  peaceable  and  orderly  car- 


riage of  mails,  and  with  the  peace- 
able and  orderly  conduct  of  railroad 
business  between  the  States  was  in- 
tended to  lay  its  strong  hand,  not 
only  upon  capitalists  and  monopo- 
lists, who,  by  combinations,  under- 
took to  interfere  with  the  business 
and  commerce  of  the  country,  and 
subject  them  to  punishment  but  on 
the  other  hand,  also  undertook  to  say 
to  the  laboring  man  of  the  country 
that  he  should  not  enforce  his  rights, 
by  violence  and  lawlessness.  United 
States  v.  Agler,  62  Fed.  824. 

Who  may  enforce  provisions 
of  Act  of  Jnly  2,  1890.— The  anti- 
trust act  of  July  2,  1890,  does  not 
enable  the  court  to  enforce  its  pro- 
visions in  favor  of  a  private  party 
by  a  bill  in  equity.  Southern  Indi- 
ana Exp.  Co.  v.  United  States  Exp. 
Co.,  88  Fed.  659. 

59.  In  re  Debs,  158  U.  S.  565,  15 
S.  Ct.  900,  39  L.  Ed.  1092. 


778 


Kelating  to  Steikes,  Boycotts  and  Monopolies.       §  50i) 

§  509.  Railroad  boycotts ;  violating  interstate  commerce  act. 

— A  suit  in  equity  to  enforce  by  injunction  the  third  section  of  the 
interstate  commerce  act,  and  praying  that  certain  railroad  com- 
panies be  restrained  from  refusing  to  afford  equal  facilities  to  the 
complainant,  a  connecting  railroad,  in  the  exchange  of  interstate 
traffic,  involves  a  Federal  question  which  is  sufficient  to  give  a 
Federal  court  jurisdiction  of  the  whole  cause,  though  remedies  of 
a  similar  nature  may  exist  under  State  statutes  or  the  common 
law.60  Where  a  labor  organization  has  declared  a  boycott  against 
a  railroad,  and  connecting  roads  are  therefore  refusing,  or  seem 
about  to  refuse,  to  afford  equal  facilities  to  the  boycotted  road,  in 
violation  of  the  third  section  of  the  interstate  commerce  act,  they 
may  be  compelled  to  do  so  by  mandatory  injunction,  since  the 
case  is  urgent,  the  rights  of  the  parties  free  from  reasonable  doubt, 
and  the  duty  sought  to  be  enforced  is  imposed  by  law;  and  such 
mandatory  injunction  is  binding  upon  all  officers  and  employees 
of  the  enjoined  company  having  proper  notice  thereof,  whether 
they  are  made  parties  or  not.61  Railway  employees  accept  their 
places  under  the  implied  condition  that  they  will  not  quit  their 
employer's  service  under  circumstances  rendering  such  conduct  a 

60.  Toledo,  etc.,  R.  Co.  v.  Penn-  law,  and  to  exchange  with  complain- 
sylvania  Co.,  54  Fed.  746,  following  ant  interstate  freight.  This  was  ex- 
Osborn  v.  U.  S.  Bank,  9  Wheat.  (U.  pressly  decided  by  Judge  Love  of  the 
S.)   738,  6  L.  Ed.  204.  Iowa    district    in    a    well-considered 

As  to  the  power  of  a  court  opinion  in  the  case  of  Chicago,  B.  & 
of  equity  to  contrive  new  rem-  Q.  R.  Co.  v.  Burlington  R.  Co.,  34  Fed. 
edies  to  enforce  rights  secured  by  481.  And  in  analogous  cases,  where 
federal  legislation,  provided  no  ille-  it  has  been  sought  to  enforce  the  com- 
gal  burdens  are  thereby  imposed.  See  mon-law  obligation  of  a  common  car- 
Joy  v.  St.  Louis,  138  U.  S.  1,  34  L.  rier,  the  preliminary  mandatory  in- 
Ed.  843,  US.  Ct.  243.  junction  has  frequently  issued.    Thus, 

61.  Toledo,  etc.,  R.  Co.  v.  Penn-  in  the  case  of  Coe  v.  Railroad  Co., 
sylvania  Co.,  54  Fed.  746;  Coe  v.  3  Fed.  775,  Judge  Baxter  issued  a 
Railroad  Co.,  3  Fed.  775.  In  the  preliminary  mandatory  injunction  to 
former  case  Taft,  J.,  said:  "As  compel  the  defendant  railroad  com- 
against  the  defendant  companies  the  pany  to  deliver  and  receive  cattle  at 
complainant  is,  therefore,  clearly  en-  a  particular  cattle  yard.  See,  also, 
titled  to  a  preliminary  mandatory  Chicago  R.  Co.  v.  New  York  R.  Co., 
injunction  to  compel  them,  pending  24  Fed.  516;  Wolverhampton  R.  Co. 
the  hearing,  to  discharge  the  duties  v.  London  R.  Co.,  L.  R.  16  Eq.  433; 
imposed  by  the  interstate  commerce  Denver  R.  Co.  v.  Atchison  R.  Co.,  15 

779 


§  510       Relating  to  Strikes,  Boycotts  and  Monopolies. 

peril  to  the  lives  and  property  committed  to  its  care,  or  in  such  a 
manner  as  to  subject  it  to  legal  penalties  and  forfeitures;  and 
although,  in  ordinary  circumstances,  the  employer  must  rely  upon 
his  action  at  law  for  a  breach  of  the  condition,  a  court  of  equity  has 
power  to  restrain  employees  from  acts  of  violence  and  intimida- 
tion, and  from  enforcing  rules  of  labor  unions  which  result  in 
irremediable  injuries  to  their  employers  and  the  public,  such  as 
those  requiring  an  arbitrary  strike  without  cause,  merely  to  enforce 
a  boycott  against  a  connecting  line.62 

§  510.  Same  subject. — A  combination  to  induce  and  procure 
the  officers  of  a  common  carrier  corporation  subject  to  the  pro- 
visions of  the  interstate  commerce  act,  and  its  locomotive  engineers, 
to  refuse  to  receive,  handle,  and  haul  interstate  freight  from 
another  like  common  carrier,  in  order  to  injure  the  latter,  is  a 
combination  or  conspiracy  to  commit  the  misdemeanor  described 
by  section  10  of  the  interstate  commerce  act,  and  a  preliminary 
injunction  may  issue  against  the  chief  member  of  such  a  conspiracy 
as  that  above  described,  to  restrain  him  from  giving  the  order  and 
signal  which  will  result  and  is  intended  to  result  in  the  unlawful 
and  irreparable  injuries  to  the  complainant  Where  such  chief 
member  has  already  issued  such  an  unlawful,  wilful,  and  criminal 
order,  the  injurious  effect  of  which  will  be  continuing,  the  court 
may,  by  mandatory  injunction,  compel  him  to  rescind  the  same, 
especially  when  the  necessary  effect  of  the  order  or  signal  is  to 

Fed.  650;  Scofield  v.  Railway  Co.,  43  claimed  against  the  defendant  alone, 
Ohio  St.  571,  3  N.  E.  907.  If  a  pre-  the  order  will,  if  necessary,  be  ex- 
liminary  mandatory  injunction  may  tended  to  his  servants,  workmen,  and 
iesue  against  the  defendant  com-  agents,  and  it  is  of  course  to  insert 
panies  to  prevent  irreparable  injury,  these  words.'  Fost.  Fed.  Pr.  (lsted.), 
it  may  certainly  issue  against  their  234;  2  Daniell.  Ch.  Pr.  (5th  Am. 
officers,  agents,  employees,  and  serv-  ed.),  1673;  Seton,  Decrees  (4th  ed.), 
ants.  This  is  the  usual  form  of  the  173;  Lord  VVellesley  v.  Earl  of  Morn- 
writ  of  injunction  to  prevent  a  tres-  ington,  11  Beav.  180;  Hodson  v. 
pass,  a  nuisance,  waste  or  other  in-  Coppard,  29  Beav.  4;  Mexican  Ore 
equitable  act.  Mr.  Kerr  says,  in  his  Co.  v.  Guadalupe  Min.  Co.,  47  Fed. 
work    on    Injunctions     (1st    ed.,    p.  351,  356." 

559):      'Though    an    injunction    re-  62.  Toledo,  etc.,  R.  Co.  v.  Pennsyl- 

straining   the   act   complained   of   is  vania  Co.,  54  Fed.  746. 

780 


Kelating  to  Strikes,  Boycotts  and  Monopolies.       §  510 


induce  and  procure  flagrant  violations  of  an  injunction  previously 
issued  by  the  court.63  And  where  a  complaint  alleged  that  certain 
named  labor  organizations  had  entered  into  a  conspiracy  to  force 
the  complainant  to  recognize  such  organizations  and  to  compel  the 
operation  of  its  road  only  by  union  or  brotherhood  men  and  that 
to  accomplish  such  purpose  the  defendants  were  seeking  to  induce 
the  employees  of  complainant  to  quit  its  service  in  violation  of 
their  contract  of  employment,  to  prevent  complainants  interchang- 


63.  Toledo,  etc.,  R.  Co.  v.  Pennsyl- 
vania Co.,  54  Fed.  730,  per  Taft,  J.: 
"  It  may  be  noted,  in  passing,   that 
the  enforcement  of  rule  12  presents  a 
much  stronger  case  of  illegality  than 
the  ordinary  boycott.    As  usually  un- 
derstood, a  boycott  is  a  combination 
of  many  to  cause  a  loss  to  one  per- 
son by  coercing  others,  against  their 
■will,   to   withdraw    from    him    their 
beneficial         business         intercourse, 
through    threats    that,    unless    those 
others    do    so,    the    many    will   cause 
similar    loss    to    them.      Ordinarily, 
when  such  a  combination  of  persons 
does     not    use    violence,     actual    or 
threatened,  to   accomplish  their  pur- 
pose, it  is  difficult  to  point  out  with 
clearness    the    illegal    means    or    end 
which  makes  the  combination  an  un- 
lawful conspiracy;  for  it  is  generally 
lawful  for  the  combiners  to  withdraw 
their    intercourse    and     its     benefits 
from  any  person,    and    to   announce 
their  intention  of  doing  so,  and  it  is 
equally  lawful  for  the  others,  of  their 
own   motion,    to    do    that   which   the 
combiners  seek  to  compel  them  to  do. 
Such  combinations  are  said  to  be  un- 
lawful conspiracies,  though  the   acts 
in  themselves   and  considered   singly 
are  innocent,  when  the  acts  are  done 
•with  malice,  i.  e.,  with  the  intention 
to  injure  another  without  lawful  ex- 
cuse.   See  the  judgment  of  Lord  Jus- 
tice Bowen  in  Mogul  Steamship  Co. 


v.    McGregor,    23    Q.     B.    Div.    598; 
Walker   v.   Cronin,     107    Mass.   555; 
Casey   v.    Typographical    Union,    45 
Fed.    135;     Steamship     Co.     v.     Mc- 
Kenna,  30  Fed.  48;  State  v.  Glidden, 
55    Conn.    76,   8    Atl.    890;    State   v. 
Stewart,    59    Vt.     273,     9     Atl.    559; 
Crump  v.  Com.,  84  Va.  927,  6  S.  E. 
020;    State   v.    Donaldson,    32   N.    J. 
Law,   151;   Carew  v.  Rutherford,  106 
Mass.     1;     Moores     v.     Bricklayers' 
Union,  23  Wkly.  Law  Bui.  48.     But 
in  the  case  at  bar,  although  malice 
is  certainly  present,  the  illegality  of 
the    combination     does     not    consist 
alone  in  that,    for    both    the  means 
taken  by  the  combination  and  its  ob- 
ject are  direct  violations  of  both  the 
civil    and   the   criminal    law,    as    em- 
bodied in  a  positive  statute.     Surely 
it    cannot    be    doubted    that    such    a 
combination   is  within  the  definition 
of    an    unlawful     conspiracy,     recog- 
nized   and    adopted   by   the   Supreme 
Court  of  the  United  States  in  Petti- 
bone  v.  United  States,  148  U.  S.  197, 
13    Sup.    Ct.    Rep.    542,    38    L.    Ed. 
419,     to     wit:       'A     combination     of 
two  or  more  persons  by  concerted  ac- 
tion, to  accomplish  a  criminal  or  un- 
lawful purpose,  or  some  purpose,  not 
in    itself    criminal    or    unlawful,    by 
criminal    or    unlawful    means.'       We 
have  thus  considered  with  some  care 
the  criminal  character  of  rule  12  and 
its  enforcement,  not  only  because,  a3 


781 


§  510       Relating  to  Strikes,  Boycotts  and  Monopolies. 


ing  traffic  with  connecting  carriers,  and  from  carrying  the  United 
States  mail,  it  was  decided  that  a  Federal  court  should  on  such  a 
complaint  grant  a  temporary  restraining  order  commanding  the 
defendants  to  refrain  from  ordering  or  causing  a  strike  of  com- 
plainant's employees  and  from  in  any  other  way  or  manner  inter- 
fering with  the  complainant  in  the  discharge  *is  a  common  carrier 


will  presently  be  seen,  it  assists  in 
determining  the  civil  liabilities  which 
grow  out  of  them,  but  also  because 
we  wish  to  make  plain,  if  we  can, 
to  the  intelligent  and  generally  law- 
abiding  men  who  compose  the  Broth- 
erhood of  Locomotive  Engineers,  as 
well  as  to  their  usually  conservative 
chief  officer,  what  we  cannot  believe 
they  appreciate,  that,  notwithstand- 
ing their  perfect  organization,  and 
their  charitable,  temperance,  and 
other  elevating  and  most  useful  pur- 
poses, the  existence  and  enforcement 
of  rule  12,  under  their  organic  law, 
make  the  whole  brotherhood  a  crim- 
inal conspiracy  against  the  laws  of 
their  country.  We  now  come  to  the 
character  of  rule  12,  and  its  enforce- 
ment as  a  civil  wrong  to  complain- 
ant. Lord  Justice  Fry  said  in  the 
case  of  Steamship  Co.  v.  McGregor, 
23  Q.  B.  Div.  598,  624:  'I  cannot 
doubt  that  whenever  persons  enter 
into  an  indictable  conspiracy,  and 
that  agreement  is  carried  into  execu- 
tion by  the  conspirators  by  means  of 
an  unlawful  act  or  acts  which  pro- 
duce private  injury  to  some  person, 
that  person  has  a  cause  of  action 
against  the  conspirators.'  See,  also, 
Buffalo  Lubricating  Oil  Co.  v. 
Standard  Oil  Co.,  106  N.  Y.  669,  12 
N.  E.  825;  Steamship  Co.  v.  Mc- 
Kenna,  30  Fed.  48;  Carew  v.  Ruther- 
ford, 106  Mass.  1 ;  and  Moores  v. 
Bricklayers'  Union,  23  Wkly.  Law 
Bui.  48.  Under  the  principle  above 
stated,  Arthur  and  all  the  members 


of  the  brotherhood  engaged  in  caus- 
ing loss  to  the  complainant  are  liable 
for  any  actual  loss  inflicted  in  pur- 
suance of  their  conspiracy.  The  gist 
of  any  such  action  must  be  not  in  the 
combination  or  conspiracy,  but  in  the 
actual  loss  occasioned  thereby.  .  .  . 
We  finally  reach  the  question 
whether  Arthur  can  be  enjoined  from 
ordering  the  engineers  to  carry  out 
rule  12.  That  he  intends  to  enforce 
the  rule,  if  not  enjoined,  is  not  de- 
nied. If,  as  we  have  seen,  the  injury 
intended  is  of  sucli  a  character  that 
the  court  may  issue  its  mandatory 
injunction  against  the  engineers  to 
prevent  them  from  inflicting  it,  Ar- 
thur may  certainly  be  restrained  by 
prohibitory  injunction  from  ordering 
them  to  inflict  it.  Arthur's  order, 
if  issued,  will  be  obeyed,  because  the 
penalty  of  disobedience  is  expulsion 
from  the  brotherhood.  The  many  en- 
gineers who  serve  the  defendant  com- 
panies will  refuse  to  handle  the  com- 
plainant's freight.  The  defendant 
companies  will  probably  be  coerced 
thereby  to  refuse  complainant's 
freight,  for  the  bill  avers  that  they 
have  threatened  to  do  so.  The  inter- 
state business  of  complainant  will  be 
interrupted  and  interfered  with,  at 
every  hour  of  the  day,  and  at  every 
point  within  a  radius  of  many  miles, 
and  all  because  of  Arthur's  order. 
The  injury  will  be  irreparable,  and  a 
judgment  for  damages  at  law  will  be 
wholly  inadequate.  The  authorities 
leave  no  doubt  that  in  such  a  case 


'82 


Relating  to  Steikes,  Boycotts  and  Monopolies.       §  511 


of  interstate  traffic  and  the  mails  of  the  United  States,  until  the 
further  order  of  the  court.64 

§  511.  Enjoining  trade  libels. — In  England,  courts  of  equity 
have  often  enjoined  libelous  publications,  which  were  injurious  to 
plaintiff's  trade  or  profession,  or  which  operate  as  a  slander  of 
his  title  to  property.  Thus,  an  injunction  was  granted  at  the 
instance  of  a  manufacturer,  to  restrain  the  secretary  of  a  trade 
union  and  a  printer  from  publishing  false  circulars  and  statements 
that  he  practiced  in  his  business  a  pernicious  system  of  sweating.6" 
But  with  the  exception  of  such  trade  libels,  the  courts  there  will 
not  ordinarily  grant  an  injunction  to  restrain  a  libel,  before  the 


an  injunction  will  issue  against  the 
stranger  who  thus  intermeddles,  and 
harrasses  complainant's  business. 
In  Sherry  v.  Perkins,  147  Mass.  212, 
17  N.  E.  307,  the  officers  of  a  trade 
union  were  enjoined  by  the  Supreme 
Judicial  Court  of  Massachusetts  from 
displaying  in  front  of  plaintiff's 
premises  a  banner  announcing  a 
strike,  and  requesting  workmen  to 
stay  away.  This  was  said  to  cause 
an  injury  of  such  a  continuing  char- 
acter as  to  make  it  a  nuisance.  So, 
in  Spinning  Co.  v.  Riley,  L.  R.  G  Eq. 
551,  a  case  presenting  facts  exactly 
like  those  in  Sherry  v.  Perkins,  an 
injunction  was  allowed.  In  Casey  v. 
Typographical  Union,  45  Fed.  135, 
Judge  Sage  granted  an  injunction 
against  the  members  of  a  typograph- 
ical union  who  had  instituted  a  boy- 
cott against  a  newspaper,  and  who 
were  attempting  to  drive  away  busi- 
ness from  it  by  threatening  its  sub- 
scribers and  advertisers  to  boycott 
them  in  case  they  continued  their 
patronage.  In  Emack  v.  Kane,  34 
Fed.  47,  Judge  Blodgett  granted  an 
injunction  against  persons  who,  by 
threatening  infringement  suits,  with- 
out any   intention  of  bringing  them, 


were  attempting  to  interfere  with 
plaintiff's  enjoyment  of  his  lawful 
patent.  And  in  Coeur  D'Alene 
Consol.  &  Min.  Co.  v.  Miners'  Union, 
51  Fed.  260,  Judge  Beatty  enjoined 
the  members  of  a  union  from  intimi- 
dating plaintiff's  workmen,  and 
thereby  preventing  them  from  con- 
tinuing in  its  employ.  Arthur's  pro- 
posed invasion  of  complainant's 
rights,  in  the  means  to  be  employed, 
and  the  character  of  the  injury  in- 
tended, is  quite  like  the  wrongs  en- 
joined in  the  cases  just  cited.  It 
would  seem  from  the  foregoing  au- 
thorities that  we  may  enjoin  Arthur 
from  directing  the  engineers  to  quit 
work,  for  the  purpose  of  coercing  the 
defendant  companies  to  violate  the 
law  and  complainant's  rights. 
Though  we  cannot  enjoin  the  engi- 
neers from  unlawfully  quitting,  it 
does  not  follow  that  we  may  not  en- 
join Arthur  from  ordering  them  to 
do  so.  An  injunction  in  this  form, 
however,  has  not  been  asked,  and  we 
need  not  decide  the  question." 

64.  Wabash  R.  Co.   v.  Hannahan, 
121  Fed.  563. 

65.  Collard  v.  Marshall    (1892),  1 
Ch.  571. 


783 


I  la     Relating   r<>  Strikes,  Boycotts  and  Movopouml 

case  has  been  submitted  to  a  jury.6*5  In  this  country,  courts  of 
equity  have  generally  refused  to  enjoin  trade  libels,67  on  the  ground 
that  the  courts  cannot  abridge  the  constitutional  right  of  free 
speech;68  and  in  accordance  with  the  rule,  that  equity  cannot  enjoin 
the  crime  of  publishing  a  libel  or  slander.* 

§  511a.  Same  subject;  circulars. — Circulars  containing  threats 
of  loss  and  injury  to  those  who  should  do  business  with  complain- 
ant, are  held  to  be  more  than  libels,  and  arc  enjoined."  So  the 
sending  out  of  circulars  in  execution  of  an   attempt  to  boycott 

another  and  which  will  tend  to  injure  or  destroy  hi<  business  may 
be  enjoined.71  So  in  Michigan,  a  company  which  had  In  en  i-uing 
circulars,  threatening  suits  against  all  persons  who  bought  a  com- 
petitor's manufactures,  and  falsely  stating  that  such  manufactures 
infringed  its  patents,  and  which  by  fraud  and  collusion  obtained 
a  decree  purporting  to  be  an  adjudication  on  the  merits  of  the 
dispute,  was  enjoined  from  using  or  publishing  it.72  And  in  a 
case  in  New  York  a  trade  union  was  enjoim  d  by  the  court  of  first 
instance  from  sending  circulars  to  plaintiff's  customers  threaten- 
ing, that  in  case  they  continued  to  deal  with  plaintiff,  other  trade 
unions  would  be  notified,  and  that  the  members  of  such  other 
unions  would  thus  be  induced  to  withhold  their  business  from 
persons  dealing  with  plaintiff,  as  such  circulars  were  injurious  to 

66.  Lee   v.    Gibbings,    67    Law    T.       Labor.    156   Fed.   809;    Beck   v.   Rail 
(N.  S.)    263.      See  Leslie  v.   Tucker       way     Teamsters'      Protective    Union, 
<Ch.  Div.),  13  Nat.  Corp.  Rep.  213.  118  Mich.  497,  77  X.  W.  13,  42  L.  R. 

67.  Boston  Diatite  Co.  v.  Manufac-       A.  407. 

hiring  Co.,  114  Mass.  69:  Whitehead  71.   Rocky   Mountain   Bell   Teleph. 

v.    Kitson,    119    Mass.    484;     Singer  Co.  v.  Montana  Federation  of  Labor, 

MTg   Co.   v.   Domestic    Sewing    Ma-  156   Fed.    809;     Loewe  v.   California 

chine    Co.,     49     Ga.     70:     Mauger   v.  State  Federation,  139  Fed.  71;    Beck 

Dick,  55  How.  Pr.   (X.  Y.)    132.  v.     Railway     Teamsters'     Protective 

68.  Life  Association,  etc.,  v.  Union,  118  Mich.  497,  77  X.  W.  13, 
Boogher,  3  Mo.  App.  173.  42  L.  R.  A.  407.     Compare  Butteriek 

69.  Francis  v.  Flinn,  118  U.  S.  Pub.  Co.  v.  Typographical  Union,  50 
382,  389,  30  L.  Ed.  165,  167,  6  S.  Ct.  Misc.  R.  (X.  Y.)  1,  100  X.  Y.  Supp. 
1148.     See  §§  58,  59,  ante.  292. 

70.  Casey  v.  Typographical  Union,  72.   Grand    Rapids    School   Furni- 
45  Fed.  135;  Emack  v.  Kane,  34  Fed.  ture  Co.  v.  Haney  School   Furniture 
46.         See      Rocky      Mountain      Bell  Co.,  92  Mich.  558,  52  X.  W.  1009. 
Teleph.  Co.  v.  Montana  Federation  of 

784 


Relating  to  Strikes,  Boycotts  and  Monopolies.     §  511a 


plaintiff's  business,  and  amounted  to  an  indefinite  trespass  upon 
his  personal  property,  of  which  the  damages  were  not  ascertain- 
able.73   But  on  appeal  the  injunction  was  set  aside  on  the  ground 


73.  Sinsheimer  v.  United  Garment 
Workers,  26  N.  Y.  Supp.  152,  per  In- 
graham,    J.:       "It    clearly    appears 
that  sending  such  circulars  to  plain- 
tiffs  customers   would   cause   serious 
injury    to    plaintiff's     business,     each 
letter  sent  by  defendants  causing  ad- 
ditional  injury,  that  would  continue 
until    the    notice    contained    therein 
was  withdrawn.    The  serious  question 
that  is  presented  at  the  threshold  of 
this  case  is  whether  a  court  of  equity 
has  jurisdiction  to  restrain  the  issu- 
ance of  such  circulars.     The  right  to 
this  relief  does  not  depend  upon  the 
truth  or  falsity  of  the  statement  con- 
tained in  the  circulars  issued.     It  is 
not  because  the  circular  states  facts 
which   are  untrue  that   the  court  is 
asked  to  interfere.    It  is  placed  upon 
the  broad  ground  that  the  defendants 
have   conspired   to    injure   the   plain- 
tiff's   property   by    illegal    acts,    that 
such  injury    is    a    continual   injury, 
and  that  it  is  impossible  to  estimate 
the   damages  that  will   result   there- 
from.    We  have  thus  a  continual  in- 
jury by  the  wrongful  acts  of  others, 
where  it  is  clearly  impracticable  to  as- 
certain the  damages  flowing  from  each 
wrongful  act.     It  has  been  settled  in 
this  State,  in  the  case  of  People  v. 
Barondess,   133  N.  Y.   649,  31   N.  E. 
240,  that  a  threat  to  do  an  injury  to 
the  business  of  the  person  threatened 
is  a  threat  to  injure  the  property  of 
such  person,  and  that  the  statements 
of  an   officer  of  such   an   association 
as   the   present  defendants   that,   un- 
less a  copartnership  paid  him  a  sum 
of  money,  they  (the  employers)  could 
not    have    their    employees    back    to 
work  again,  was  a  threat  to  do  an 


unlawful    injury    to    the    employers' 
business.       In    that    case   the   threat 
consisted    in    the    fact   that   the    em- 
ployees   would    not    return  to   work 
until    the    defendants'    demand    was 
complied    with.       In    this    case    the 
plaintiff's    customers   were   told   that 
if   they   continued    to   deal   with   the 
plaintiff,    and    to   sell    the    plaintiff's 
goods,  so  long  as  plaintiff  refused  to 
comply     with     defendants'     demands, 
the   defendants  would   take   steps   to 
interfere  with  the  successful  conduct 
of  the  plaintiffs'  customers'  business. 
Applying  the  principle  established  in 
the  Barondess  Case  to  the  facts  here 
stated,  it  is  clear  that  it  was  an  un- 
lawful  injury  to  plaintiffs'  property 
to  send  circulars  to  their  customers, 
which  would  tend  to  induce  such  cus- 
tomers to   discontinue   business  with 
the  plaintiff.     The  question,  then,  is 
presented  whether  it  is  the  duty  of  a 
court   of   equity   to    interfere   by    in- 
junction  to    restrain    the    defendants 
from   continuing  thus   unlawfully   to 
injure    the    plaintiffs'    property,    and 
that  question,   I   think,  must  be  an- 
swered  in   the   affirmative.      From   a 
very   early    period    courts   of  equity 
have   in  all  cases  of  continued   tres- 
pass, or   continuing  injury   to  prop- 
erty, where  defendants  were  doing  a 
series  of  acts  which  were  unlawfully 
injuring  the  plaintiff's  property,  and 
where,  to  enforce  a  remedy  for  such 
unlawful    acts    at    law,     many    suita 
would  be  required,  interfered  by   in- 
junction to  restrain  the  continuance 
of   such   unlawful   acts,   and    1    know 
of  no  principle  that  confines  the  duty 
of  the  court  to  act  where  the  unlaw- 
ful acts  cause  an  injury  to  real  prop- 


785 


50 


f  §  512,  513     Relating  to  Strikes,  Boycotts  axd  Monopolies. 

that  plaintiff's  own  hands  were  not  clean.71  An  injunction  to 
restrain  a  trade  union  from  issuing  circulars,  or  doing  anything 
to  boycott  manufacturers,  may  properly  be  denied  where  the  latter, 
as  well  as  the  former,  are  aggressively  combined,  in  accordance 
with  the  principle  of  equity  that  an  applicant  for  injunctive  relief 
must  not  himself  have  done  that  of  which  he  complains.75 

§  512.  In  case  of  trespass. — The  rule,  that  a  trespass  cannot  be 
enjoined  unless  on  realty,  and  where  the  damage  is  irreparable, 
and  after  the  right  or  title  involved  has  been  established  at  law, 
does  not  apply  where  an  injunction  is  sought  to  restrain  a  trade 
union  from  entering  on  complainant's  mines,  and  by  intimidation, 
preventing  employees  from  working  the  mines,  as  no  title  to  realty 
is  involved,  and  the  acts  complained  of  are  not  a  direct  trespass 
to  realty,  but  only  indirectly  affect  its  enjoyment.76  And  the  rule 
that  equity  will  not  interfere  for  the  prevention  of  crime,  does  not 
apply  where  an  injunction  is  sought  to  restrain  a  labor  union  and 
its  members  from  entering  complainant's  mines  and  obstructing 
the  working  thereof,  as  such  acts  are  not  necessarily  criminal, 
though  unlawful,  and  such  as  may  lead  to  criminal  acts.77 

§  513.  Restraining  monopolies. — In  a  recent  case  in  Illinois 

erty.  Trespass,  in  its  broad  sense,  is  equity  have  constantly  interfered  to 
'  any  misfeasance  or  act  of  one  man  restrain  acts  which  are  invasions  of 
whereby  another  is  injuriously  franchises  granted  by  the  State,  and 
treated  or  damnified;  any  unlawful  other  instances  could  be  adduced  in 
act  committed  with  violence,  actual  which  courts  of  equity  have  fre- 
or  implied,  to  the  person,  property  quently  interposed  to  prevent 
or  rights  of  another.'  2  13ouv.  Law  threatened  injury  to  personal  prop- 
Diet.   747.      And   while   the  cases   in  erty." 

which  this  remedy  has  been  usually  74.  N.  Y.  Law  Jour,  of  April  26, 

invoked   have  been   those  relating  to  1894. 

trespass    upon     real      property,    the  75.     Clothing     Manufacturers     v. 

necessity   for   the   interposition   of   a  United     Garment     Workers,    N.    Y. 

court  of  equity  to  prevent  a  wrong,  Daily  Reg.  of  April  6,  1893.    And  see 

for  which  there  is  no  other  remedy,  §  14,  ante. 

and   to   render   unnecessary  a   multi-  76.    Coeur    d'Alene,    etc.,    Mining 

plicity  of  actions,  exists  just  as  much  Co.  v.  Miners'  Union,  51  Fed.  260. 

-where  the  wrong  is  to  such  personal  77.    Coeur    d'Alene,    etc.,    Mining 

property   as  is   in   its  nature   indefi-  Co.  v.  Miners'  Union,  51  Fed.  260. 
nite,  as  to  real  property.     Courts  of 

786 


Relating  to  Steikes,  Boycotts  and  Monopolies.     §  513a 

it  is  decided  that  where  a  corporation  has  acquired  a  majority  of 
the  stock  of  another  corporation  for  the  purpose  of  controlling  and 
removing  competition  on  the  part  of  the  latter  company,  the  former 
corporation  may  at  the  suit  of  the  minority  stockholders  of  the 
other  be  enjoined  from  exercising  the  voting  power  that  the  ma- 
jority of  the  stock  confers  upon  it,  so  as  to  carry  out  such  purpose.78 
And  the  injury  sustained  by  one  who  is  a  stockholder,  director  and 
officer  in  a  corporation  the  control  of  the  stock  of  which  has  been 
purchased  by  another  corporation  for  the  purpose  of  creating  a 
monopoly  in  favor  of  the  latter,  suffers  an  injury  distinct  from 
that  suffered  by  the  public  through  the  creation  of  the  monopoly 
which  entitles  him  to  maintain  a  bill  for  an  injunction  to  prevent 
the  voting  of  the  stock  by  the  purchasing  corporation.79    The  New 
Hampshire  act  of  1867,  the  object  of  which  was  to  prevent  the  con- 
solidation of  rival  and  competing  railroad  companies,  and  so  pre- 
vent the  increase  of  rates  beyond  what  might  be  expected  under 
the  influence  of  free  competition,  expressly  authorized  an  indi- 
vidual citizen  to  restrain  such  consolidation  by  injunction,  without 
showing  that  he  had  a  special  pecuniary  interest  in  enforcing  the 
statute.80     And  under  the  similar  New  York  statute  of   1854, 
passed  to  prevent  the  formation  of  steamboat  monopolies,  it  was 
held  that  stockholders  of  one  of  the  two  rival  steamboat  companies 
could  sue  to  enjoin  the  companies  from  running  their  boats  for 
joint  or  mutual  benefit.81 

§  513au  Same  subject;  Northern  Securities  Co.  v.  United 
States. — Where  two  railway  companies  own,  control,  and  operate 
separate  lines  of  railroads  which  are  parallel  and  competing  lines, 
engaged  in  active  competition,  and  the  stockholders  of  such  com- 
panies in  pursuance  of  a  combination  combine  and  organize   a 

78.  Dunbar  v.  American  Teleph.  ity  if  not  conferred  by  statute. 
Co.   224  111.  9,  70  N.  E.  423.  Quincy    Canal    v.    Newcomb,    7    Met. 

79.  Bigelow  v.  Calumet  &  Hecla  276;  Fall  River  Co.  v.  Old  Colony 
M.  Co.,  155  Fed.  868.  R.  Co.,   5    Allen,    224;     Brainard  v. 

80.  Currier  v.  Concord  R.  Co.,  48  Conn.  River  R.  Co.,  7  Cusb.  506. 

jj    jj    32i.  81.  Watson  v.  Harlem,  etc.,  Nav. 

An    individual     not     specially      Co.,  52  How.  Pr.    (N.  Y.)    348. 
injured  would  not  bave  this  author- 

7S7 


§  514       Relating  to  Strikes,  Boycotts  and  Monopolies. 

.stockholding  corporation  to  hold  the  shares  of  stock  of  such  com- 
panies, in  exchange  for  which  shares  of  the  holding  corporation, 
are  to  be  given  <to  the  stockholders  in  such  companies,  such  con- 
stituent companies  cease  under  such  a  combination  to  be  in  active 
competition  for  trade  and  commerce  and  become  practically,  one 
consolidated  corporation,  by  the  name  of  a  holding  corporation,  the 
principal,  if  not  the  sole,  object  for  which  is  to  carry  out  the  pur- 
pose of  the  original  combination  between  the  constituent  companies 
and  such  an  arrangement  constitutes  a  combination  in  restraint  of 
interstate  commerce  within  the  meaning  of  the  provisions  of  the 
anti-trust  act  of  July  2,  1890.  Under  such  circumstances  it  is 
proper  to  decree  that  the  holding  company,  its  officers,  agents,  ser- 
vants and  employees  be  enjoined  from  acquiring,  or  attempting 
to  acquire,  further  stock  of  the  constituent  companies,  and  that  the 
holding  company  be  enjoined  from  voting  the  aforesaid  stock  which 
it  holds  or  may  acquire,  and  from  attempting  to  vote  it;  from 
attempting  to  exercise  any  control  over  the  acts  and  doings  of  such 
companies  or  either  of  them;  and  that  the  constituent  companies 
be  enjoined  from  paying  any  dividends  to  the  holding  company 
on  account  of  the  stock  held  by  it.82 

§  514.  Protecting  monopolies  by  injunction. — In  Louisiana  it 
has  been  decided  that  statutes  creating  monopolies  were  not  uncon- 
stitutional ;  that  the  State  could  give  the  Louisiana  Lottery  Com- 
pany the  exclusive  right  to  sell  lottery  tickets,83  and  the  Crescent 
City  Slaughter  House  Company  the  exclusive  right  to  keep  a 
slaughter  house  in  New  Orleans,S4  and  a  gas  company  the  sole  and 
exclusive  right  to  manufacture  and  sell  illuminating  gas  in  New 
Orleans,  which  exclusive  right  the  company  could  protect  by  en- 
joining all  others  from  so  making  and  selling  gas.85  And  the  same 
doctrine  has  been  partially  adopted  in  Kentucky.86  If  a  corporation 
has  received  from  the  State,  upon  considerations  of  an  equivalent 

82.  Northern     Securities     Co.     v.  85.  Crescent  City  Gas  Co.  v.  Ne\sr 
United  States,  193  U.  S.  197,  48  L.       Orleans  Gas  Co.,  27  La.  Ann.  138. 
Ed.  679,  24  S.  Ct.  436.  86.    Citizens'    Gas    Light    Co.    v. 

83.  Louisiana  Lottery  Company  v.  Louisville  Gas  Co.,  81  Ky.  263;  New- 
Richoux,  23  La.  Ann.  743.  port  v.   Newport  Light  Co.,   84  Ky. 

84.  State    v.    Fagan,  22  La.  Ann.  166. 
545. 

vss 


Relating  to  Strikes,  Boycotts  and  Monopolies.       §  515 

public  benefit,  an  exclusive  right  to  operate  ia  railroad  or  bridge 
between  two  places,  it  may  enjoin  another  company  from  operating 
another  road  or  bridge  between  the  same  places.87  Where  a  gas 
company  has  an  exclusive  charter  right  to  lay  its  pipes  through  city 
streets,  except  as  to  such  others  as  might  be  authorized  by  the  Legis- 
lature, it  was  held  not  to  have  a  monopoly,  and  not  entitled  to  an 
injunction  to  prevent  another  company  from  laying  its  pipes.88 
And  a  preliminary  injunction  will  be  refused  to  protect  a  company 
which  claims  the  exclusive  right  to  lay  pipes  for  water  supply, 
where  the  legal  right  is  disputed  and  has  not  been  determined.89 
This  subject  of  exclusive  rights  and  franchises  will  be  more  fully 
considered  in  a  succeeding  chapter. 

§515.  Monopolies;   restraint   of   interstate   commerce. — The 

contracts,  combinations  in  the  form  of  trust  or  otherwise,  and  con- 
spiracies in  restraint  of  trade  declared  to  be  illegal  in  interstate  and 
international  commerce  by  the  act  of  July  2,  1890,  entitled  "  An 
act  to  protect  trade  and  commerce  against  unlawful  restraints  and 
monopolies,"  90  are  the  contracts,  combinations,  and  conspiracies  in 
restraint  of  trade  that  had  been  declared  by  the  courts  to  be  against 
public  policy  and  void  under  the  common  law  before  the,  passage 
of  that  act.91  The  test  of  the  validity  of  such  contracts  or  combina- 
tions is  not  the  existence  of  restriction  upon  competition  imposed 

87.  Boston,  etc.,  R.  Co.  v.  Salem,  mon  law,  the  ground  on  which  con- 
etc,  R.  Co.,  2  Gray  (Mass.),  1,  34;  tracts  in  restraint  of  trade  were  de- 
Piscataqua  Bridge  v.  New  Hamp-  clared  unlawful  was  that  they  were 
shire  Bridge,  7  N.  H.  35;  Livingston  against  public  policy.  But  when  it 
v.  Van  Ingen,  9  Johns.  (N.  Y.)  507;  becomes  necessary  to  consider 
Charles  Riv.  Bridge  v.  Warren  grounds  of  public  policy  in  the  deter- 
Bridge,  11  Pet.  (U.  S.)  420,  9  L.  Ed.  mination  of  a  case,  it  is  well  to  bear 
773;  Fletcher  v.  Peck,  6  Cranch,  135.  in   mind   the   oft-quoted   remarks   of 

88.  Norwich  Gas  Co.  v.  Norwich  Justice  Burrough  in  Richardson  v. 
City  Gas  Co.,  25  Conn.  19.  Melish,  2  Bing.  252,  that  public  pol- 

89.  Atlantic  City  Water  Co.  v.  icy  '  is  a  very  unruly  horse,  and  when 
Consumers'  Water  Co.,  44  N.  J.  Eq.  you  once  get  astride  of  it  you  never 
427,  15  Atl.  581.  know  where   it  will   carry  you.     It 

90.  26  U.  S.  Stat.  209.  may  lead  you  from  the  sound  law.' 

91.  United  States  v.  Trans-Mis-  Public  policy  changes  with  the 
souri  Freight  Assoc'n,  58  Fed.  58,  changing  conditions  of  the  times.  It 
per  Sanborn,  J. :     "  Under  the  com-  is  hardly  to  be  expected  that  a  peo- 

789 


§  515       Relating  to  Strikes,  Boycotts  and  Monopolies. 


thereby,  but  the  reasonableness  of  tha»t  restriction  under  the  fact* 
and  circumstances  of  each  particular  case,  and  if  the  contract  or 
combination  appears  to  have  been  made  for  a  just  and  honest 
purpose,  and  the  restraint  upon  trade  is  not  specially  injurious  to 
the  public,  and  is  not  greater  than  the  protection  of  the  legitimate 
interest  of  the  party  in  whose  favor  the  restraint  is  imposed 
reasonably  requires,  the  contract  or  combination  is  not  illegal. 
Thus  a  contract  between  railroad  companies  forming  a  freight 
association  that  they  will  establish  and  maintain  such  rates,  rule3 
and  regulations  on  freight  traffic  between  competitive  points  as  a 
committee  of  their  choosing  shall  recommend  as  reasonable;  that 
these  rates,  rules  and  regulations  shall  be  public;  and  that  any 
member  may  withdraw  from  the  association  on  a  notice  of  thirty 


pie  who  are  transported  by  steam 
with  a  rapidity  hardly  conceived  of 
a  century  ago,  who  are  in  constant 
and  instant  communication  with  each 
other  by  electricity,  and  who  carry  on 
the  most  important  commercial 
transactions  by  the  use  of  the  tele- 
graph while  separated  by  thousands 
of  miles,  will  entertain  precisely  the 
same  views  of  what  is  conducive  to 
the  public  welfare  in  commercial  and 
business  transactions  as  the  people  of 
the  last  century,  who  lived  when 
commerce  crept  slowly  along  the 
coasts,  shut  out  of  the  interior  by  the, 
absence  of  roads,  and  hampered  by  an 
almost  impassable  ocean.  In  14 15  a 
writ  of  debt  was  brought  on  an  obli- 
gation by  one  John  Dier,  in  which  the 
defendant  alleged  the  obligation  in  a 
certain  indenture  which  he  put  forth, 
and  on  condition  that  if  the  defend- 
ant did  not  use  his  art  of  a  dyers 
craft,  within  the  city  where  the 
plaintiff,  etc.,  for  half  a  year,  the 
obligation  to  lose  its  force,  and  said 
that  he  did  not  use  his  art  within  the 
time  limited.  Hull,  J.,  said:  'In 
my  opinion  you  might  have  demurred 
upon  him  that  the  obligation  is  void, 


inasmuch  as  the  condition  is  against 
the  common  law;  and  per  Dieu,  if  the 
plaintiff  were  here,  he  should  go  to 
prison  till  he  paid  a  fine  to  the  king.' 
Y.  B.,  2  Hen.  V.  fol.  5,  pi.  26.  In 
1841,  Lord  Langdale,  master  of  the 
rolls,  held  that  a  contract  made  by  & 
lawyer  not  to  practice  his  profession 
in  Great  Britain  for  twenty  years 
was  not  against  public  policy,  and 
that  it  was  valid.  Whittaker  v. 
Howe,  3  Beav.  383.  In  1843,  the 
court  of  exchequer  held  that  an 
agreement  not  to  practice  as  a  sur- 
geon dentist  in  London  or  in  any 
other  town  where  the  plaintiffs  might 
have  been  practicing,  was  reasonable 
and  lawful  so  far  as  it  related  to 
London,  but  against  public  policy  and 
void  as  to  the  other  towns.  Mallan 
v.  May,  11  Mees.  &  W.  653,  667.  In 
1869,  Vice  Chancellor  James  sus- 
tained a  contract  by  vendors  not  to 
carry  on  or  allow  others  to  carry  on 
in  any  part  of  Europe  the  manu- 
facture or  sale  of  certain  kinds  of 
leather  so  as  in  any  way  to  inter- 
fere with  the  exclusive  enjoyment  by 
the  purchasing  company  of  the  man- 
ufacture and  sale  thereof,  and  issued 


790 


Relating  to  Strikes,  Boycotts  and  Monopolies.       §  515 

days, — appears  to  be  a  contract  tending  to  make  competition  fair 
and  open,  and  to  induce  steadiness  of  rates,  and  is  in  accord  with 
the  policy  of  the  interstate  commerce  act,  and  cannot  be  adjudged 
to  be  a  contract  or  conspiracy  in  restraint  of  trade  under  the  anti- 
trust act,  and  the  companies  will  not  be  enjoined  from  carrying  it 
into  effect.92  In  an  action  brought  in  a  State  court  to  restrain  an 
unlawful  combination  as  in  restraint  of  trade,  the  Federal  statutes 


an  injunction  to  enforce  it.  Cloth 
Co.  v.  Lorsont,  L.  R.  9  Eq.  345.  In 
1889,  the  Supreme  Court  of  New 
York  sustained  a  contract  not  to 
manufacture  or  sell  thermometers  or 
storm  glasses  throughout  the  United 
States  for  ten  years.  Thermometer 
Co.  v.  Pool,  51  Hun,  157,  163,  4  N. 
Y.  Supp.  8G1.  And  in  1891  the  Su- 
preme Court  held  that  a  contract  of 
a  railroad  corporation  giving  the 
Pullman  Southern  Car  Company  the 
exclusive  right  to  furnish  all  drawing 
room  and  sleeping  cars  required  by 
that  road  during  a  period  of  fifteen 
years,  was  not  an  illegal  restraint  of 
trade,  and  sustained  it.  Chicago,  etc.j 
R.  Co.  v.  Pullman  Southern  Car  Co., 
139     U.     S.     79,     11     S.     Ct,     490, 


35     L. 

public 
trated 


Ed.     97. 

policy    of 
by    public 


It  is  with  the 
to-day,  as  illus- 
statutes    and    ju- 


dicial decisions,  that  we  have  now  to 
deal.  In  considering  that  subject  we 
are  not  to  be  governed  by  our  own 
views  of  the  interests  of  the  people, 
or  by  general  considerations  tending 
to  show  what  policy  would  probably 
be  wise  or  unwise.  Such  a  standard 
of  determination  might  be  uncon- 
sciously varied  by  the  personal  views 
of  the  judges  who  constitute  the 
court.  The  public  policy  of  the  na- 
tion must  be  determined  by  its  Con- 
stitution, laws,  and  judicial  decisions. 
So  far  as  they  disclose  it,  it  is  our 
province  to  learn  and  enforce  it;  be- 


yond that  it  is  unnecessary  and  un- 
wise to  pursue  our  inquiries.  Vidal 
v.  Girard's  Ex'rs,  2  How.  127,  197, 
11  L.  Ed.  205;  Swann  v.  Swann,  21 
Fed.  299." 

92.  United  States  v.  Trans-Mis- 
souri Freight  Assoc'n,  58  Fed.  58,  per 
Sanborn,  J. :  "  To  maintain  hia 
proposition  that  any  contract  be- 
tween common  carriers  that  restricts 
competition  in  any  degree  is  an  ille- 
gal restraint  of  trade,  the  counsel  for 
the  government  has  cited  numerous 
cases  where  such  expressions  as  the 
following  are  found  in  the  opinionsi 
of  the  courts :  '  The  people  have  a 
right  to  the  necessaries  and  con- 
veniences of  life  at  a  price  deter- 
mined by  the  relation  of  supply  and 
demand,  and  the  law  forbids  any 
agreement  or  combination  whereby 
that  price  is  removed  beyond  the  sal- 
utary influence  of  legitimate  compe- 
tition.' DeWitt  Wire-Cloth  Co.  v. 
New  Jersey  Wire-Cloth  Co.,  14  N.  Y. 
Supp.  277.  '  It  is  against  the  gen- 
eral policy  of  the  law  to  destroy  or 
interfere  with  free  competition,  or  to 
permit  such  interference  or  destruc- 
tion.' Stewart  v.  Transportation  Co., 
17  Minn.  372  (Gil.  348).  'Combina- 
tions and  conspiracies  to  enhance  the 
price  of  any  article  of  trade  and 
commerce  are  injurious  to  the  public.' 
People  v.  Fisher,  14  Wend.  9.  '  What- 
ever destroys,  or  even  restricts,  com- 
petition in  trade  is  injurious,  if  not 


791 


§515  K  l  LATINO   TO    StEIKES,   BOYCOTTS  AND  MONOPOLIES. 


forbidding'  such  unlawful  combinations  apply  only  to  interstate  or 
foreign  commerce  and  redress  for  a  violation  of  their  provisions  is 
to  be  sought  in  the  Federal  courts.  The  illegality  of  the  combinar 
tion,  in  the  case  above  stated,  must  be  determined  by  the  common 
law  and  the  State  statutes.93 


fatal,  to  it.'  Hooker  v.  Vandewater, 
4  Denio,  349,  353.  A  careful  and 
patient  examination  of  the  cases 
cited,  however,  discloses  the  fact  that 
the  contracts  considered  in  those 
cases,  which  are  not  of  doubtful  au- 
thority, were  of  one  of  the  classes  to 
which  we  have  referred,  or  rest  upon 
some  other  ground  than  the  existence 
of  restriction  upon  competition.  They 
were  cases  involving  contracts  of  com- 
peting producers  or  dealers  to  limit 
the  supply  and  enhance  the  price  of, 
or  to  monopolize,  staple  commodities, 
like  Morris  Run  Coal  Co.  v.  Barclay 
Coal  Co.,  68  Pa.  St.  173;  India  Bag- 
ging Assn.  v.  B.  Kock  &  Co.,  14  La. 
Ann.  168;  United  States  v.  Jellico 
Mountain  Coal  Co.,  46  Fed.  432; 
Lumber  Co.  v.  Hayes.  76  Cal.  387,  18 
Pac.  391;  DeWitt  Wire-Cloth  Co.  v. 
New  Jersey  Wire-Cloth  Co.  (Com. 
PI.  N.  Y.),  14  N.  Y.  Supp.  277;  Salt 
Co.  v.  Guthrie,  35  Ohio  St.  666;  and 
People  v.  North  River  Sugar  Refin- 
ing Co.,  54  Hun,  354,  7  N.  Y.  Supp. 
406;  or  cases  involving  pooling  con- 
tracts, like  Craft  v.  McConoughy,  79 
111.  346;  Hooker  v.  Vandewater,  4 
Denio,  349;  Stanton  v.  Allen,  5  Denio, 
434;  Anderson  v.  Jett  (Ky.),  12  S. 
W.  670;  Gibbs  v.  Gas  Co.,  130  U.  S. 
396,  9  Sup.  Ct.  553,  32  L.  Ed.  979; 
Morrill  v.  Railroad  Co.,  55  N.  H.  531 ; 
Denver  &  N.  0.  R.  Co.  v.  Atchison, 
T.  &  S.  F.  R.  Co.,  15  Fed.  650;  and 
Woodruff  v.  Berry,  40  Ark.  252;  or 
cases  involving  combinations  of  work- 
men which  compelled  non-members  to 
abide  by  the  prices  for  labor  for  which 
they   had  fixed  or  to   abandon   their 


employment,  like  People  v.  Fisher,  14 
Wend.  9,  and  United  States  v.  Work- 
ingmen's  Amalgamated  Council,  54 
Fed.  994,  1000;  or  cases  where  the 
contracts  were  ultra  vires  the  cor- 
porations, and  their  purpose  and  ef- 
fect was  to  monopolize  trade,  like 
Railroad  Co.  v.  Collins,  40  Ga.  582; 
Hazlehurst  v.  Railroad  Co.,  43  Ga. 
13;  and  Western  Union  Tel.  Co.  v. 
American  Union  Tel.  Co.,  65  Ga.  160; 
or  cases  of  questionable  authority, 
like  Com.  v.  Carlisle,  Brightly,  N.  P. 
36,  39.  See,  contra,  Snow  v.  Wheeler, 
113  Mass.  179,  185;  Bowen  v.  Math- 
eson,  14  Allen,  499;  Skrainka  v. 
Scharringhauscn,  8  Mo.  App.  522; 
and  Carew  v.  Rutherford,  106  Mass 
1,  14.  It  was  natural  that  in  the 
discussion  of  contracts  of  these 
classes  the  court  should  condemn  in 
unmeasured  terms  the  suppression  of 
competition,  but  in  none  of  these 
cases  were  they  required  to  hold,  and 
in  none  of  them  did  they  hold,  a* 
we  understand  the  opinions  when 
read  in  relation  to  the  facts  of  the 
cases  respectively,  that  every  restric- 
tion of  competition  by  contracts  of 
competing  dealers  or  carriers  was  il- 
legal. These  decisions  rest  upon 
broader  ground — on  the  ground  that 
the  main  purpose  of  the  obnoxious 
contracts  was  to  suppress  competi- 
tion, and  that  they  thus  tended  to 
effect  an  unreasonable  and  unlawful 
restraint  of  trade;  they  rest  on  the 
well-settled  rules,  nad  come  within 
the  well-defined  classes  to  which  we 
have  above  referred." 

93.  Locker    v.    American  Tobacco 


792 


Relating  to  Strikes,  Boycotts  and  Monopolies.       §  516 


§  516.  Same  subject  continued. — The  argument  that  the  busi- 
ness of  railroad  companies,  as  quasi  public  corporations,  is  of  such 
a  character  that  it  cannot  be  restrained  at  all,  without  injury  to 
the  public  interests,  and  therefore  that  any  restriction  upon  their 
competition  is  against  the  public  policy  of  the  nation,  has  not 
•been  wholly  rejected  by  the  courts  ;94  but  it  is  believed  that  it  has 
not  yet  been  directly  adjudged  that  the  railroad  transportation 
business  is  such  that  no  restraint  upon  competition  therein  can  be 
permitted,95  unless  such  restraint  substantially  disables  the  corn- 


Co.,  121  App.  Div.   (N.  Y.)   443,  10G 
N.  Y.  Supp.   115. 

94.  Gibbs  v.  Consolidated  Gas. 
Co.,  130  U.  S.  396,  400,  32  L.  Ed. 
979,  9  S.  Ct.  553 ;  Western  Union  Tel. 
Co.  v.  American  Union  Tel.  Co.,  65 
Ga.  160;  Chicago,  etc.,  Coke  Co.  v. 
People,  etc.,  Coke  Co.,  121  111.  530; 
West  Va.  Trans.  Co.  v.  Ohio  Riv. 
Pipe  Line  Co.,  22  W.  Va.  600. 

95.  Oregon  Steam  Navigation  Co. 
v.  Winsor,  20  Wall.  (U.  S.)  64,  22 
L.  Ed.  315;  Chicago,  St.  L.  &  N.  O. 
R.  Co.  v.  Pullman  Southern  Car 
Co.,  139  U.  S.  79,  35  L.  Ed. 
97,  11  S.  Ct.  490;  Mogul  Steam- 
ship Co.  v.  McGregor,  21  Q.  B. 
D.  644;  Manchester  &  L.  R.  Co. 
v.  Concord  R.  Co.,  66  N.  H.  100,  20 
Atl.  383;  Wiggins  Ferry  Co.  v.  Chi- 
cago &  A.  R.  Co.,  73  Mo.  389.  If  we 
turn  now  to  the  published  reports 
of  the  Interstate  Commerce  Com- 
mission, whose  opinion  on  such  mat- 
ters is  certainly  entitled  to  great 
consideration,  we  find  the  view  even 
more  clearly  expressed  that  it  was 
the  purpose  of  Congress  to  place  im- 
portant restraints  upon  competition, 
that  uncontrolled  struggles  for 
patronage  by  railway  carriers  are 
frequently  detrimental  to  the  public 
welfare,  that  rate  wars  are  especially 
injurious  to  the  business  interests  of 
the    country    and    contrary    to    the 


spirit  of  existing  laws,  that  the  In- 
terstate Commerce  Act  invites  con- 
ferences between  railway  managers, 
and  that  concert  of  action  in  certain 
matters  by  railway  companies  is  ab- 
solutely essential  to  enable  it  to  ac- 
complish its  true  purpose.  In  the 
fourth  annual  report  of  the  commis- 
sion, at  page  19,  we  find  the  follow- 
ing statement:  "It  is  thus  seen  at 
every  turn  that  the  regulation  of 
rates  on  a  consideration  of  the  pecu- 
niary or  other  situation  of  any  single 
road,  and  without  a  survey  of  the 
whole  field  of  operations,  whereby  its 
business  may  be  affected,  and  under 
a  supposition  that  what  is  done  in 
respect  to  that  road  may  be  limited 
in  its  consequences,  is  entirely  an- 
tagonistic to  all  principles  of  railroad 
transportation.  The  railroad  man- 
agers have  perceived  this,  from  the- 
very  first,  and  it  is  because  they 
have  perceived  this  that  they  have 
been  compelled  to  organize  them- 
selves into  railroad  associations,  for 
the  purpose  of  agreeing  upon  classifi- 
cations and  rates,  and  upon  a  great 
variety  of  other  matters  pertaining 
to  the  methods  of  conducting  inter- 
locking and  over-lapping  business, 
and  all  business  affected  by  competi- 
tive forces."  It  would  extend  this 
opinion  to  an  unreasonable  length  if 
we    assumed    to    state    the    reasons 


793 


§  .r»l7       Relating  to  S'teikes,  Boycotts  and  Monopolies. 


panies  foi»  the  performance  of  the  public  duties  imposed  upon  them 
by  law.96 

§517.  Commercial  trusts;  insurance  combinations. — Under 
the  Texas  statute  of  1889,  which  defines  a  trust  as  a  combination 
to  create  restrictions  in  trade;  to  prevent  competition  in  making, 
selling  or  buying  merchandise  or  commodities;  to  fix,  at  any 
standard  controlling  its  price  to  the  public,  any  article  or  com- 
modity of  merchandise  or  commerce  intended  for  sale,  use,  or  con- 


which  probably  influenced  Congress 
to  impose  some  restrictions  upon 
competition  in  the  matter  of  railway 
transportation,  and  to  place  railway 
carriers  under  the  operation  of  a 
law  which,  for  its  successful  execu- 
tion, as  pointed  out  by  the  Interstate 
Commerce  Commission,  seems  to 
some  extent  to  invite  conference  and 
concert  of  action.  It  is  likewise  un- 
necessary for  us  to  state  the  reasons 
why  railroad  companies  should  be 
accorded  the  privilege  of  entering 
into  arrangements  with  other  com- 
panies which  may,  to  some  extent, 
regulate  competition.  Reasons  to 
that  effect  have  been  stated  with 
great  ability  and  persuasive  force  in 
some  of  the  cases  to  which  we  have 
already  referred,  notably  in  Man- 
chester, etc.,  R.  Co.  v.  Concord  R. 
Co.,  supra.  But,  without  entering 
into  that  discussion,  it  is  sufficient 
to  say  that,  in  our  judgment,  there 
was  no  hard  and  fast  rule  in  force 
when  the  Anti-Trust  Act  was  enacted, 
which  made  every  contract  between 
railroad  companies  void  on  grounds 
of  public  policy,  if  it  in  any  wise 
checked  competition.  In  our  judg- 
ment, the  more  reasonable  doctrine 
then  prevailed,  especially  in  view  of 
the  recent  passage  of  the  Interstate 
Commerce  Act,  that  such  contracts 
were  void,  if,  judged  in  the  light  of 


all  the  circumstances  and  condition* 
under  which  they  were  made,  they 
unreasonably  restricted  competition. 
96.  United  States  v.  Trans-Mis- 
souri Freight  Assoc'n,  58  Fed.  58,  82, 
per  Sanborn,  J. :  "A  monopoly  of 
trade  embraces  two  essential  ele- 
ments: (1)  The  acquisition  of  an 
exclusive  right  to,  or  the  exclusive 
control  of,  that  trade;  and  (2)  the 
exclusion  of  all  others  from  that 
right  and  control.  There  is  nothing 
in  this  contract  indicating  any  pur- 
pose or  attempt  to  obtain  such  a 
monopoly.  The  great  transportation 
systems  of  the  Great  Northern  Rail- 
way Company,  the  Northern  Pacific 
Railroad  Company,  the  Southern  Pa 
cific  Railroad  Company,  and  the 
Texas  Pacific  Railroad  Company, 
were  operated  in  the  region  subject 
to  the  regulation  of  this  association, 
but  none  of  these  companies  were 
members  of  it;  and,  even  if  they  had 
been,  there  would  still  have  been  no 
evidence  of  any  attempt  to  monopo- 
lize trade  here,  because  each  member 
is  left  to  compete  with  every  other 
for  its  share  of  the  traffic.  In  re 
Greene,  52  Fed.  104,  115.  The  posi- 
tion that  these  railroad  companieg 
have  so  far  disabled  themselves  from 
the  performance  of  their  public  du- 
ties by  the  execution  of  this  contract 
as  to  give  ground  for  the  avoidance 


794 


Relating  to  Strikes,  Boycotts  and  Monopolies.       §  517 

sumption  in  the  State;97  to  make  or  perform  any  agreement  not 
to  sell  or  dispose  of  any  article  or  commodity  of  trade,  use,  mer- 
chandise, commerce  or  consumption  below  a  common  standard, 


of  the  contract,  and  for  a  forfeiture 
of  their  franchises,  cannot  be  suc- 
cessfully maintained.  It  is  well  set- 
tled upon  principle  authority  that, 
where  a  corporation  by  a  contract, 
entirely  or  substantially  disables  it- 
self from  the  performance  of  the  du- 
ties to  the  public  imposed  upon  it  by 
the  acceptance  of  its  charter,  the 
contract  is  void,  and  its  franchise 
may  be  forfeited.  The  reasons  for 
this  rule,  and  some  of  the  limitations 
of  it,  were  stated  by  this  court  in 
Union  Pac.  Ry.  Co.  v.  Chicago,  R.  I. 
&  P.  Ry.  Co.,  51  Fed.  30.9,  317-321,  2 
C.  C.  A.  174,  230-235;  and  it  is  un- 
necessary to  repeat  them  here." 

97.  Queen  Ins.  Co.  v.  State,  8G 
Tex.  250,  24  S.  W.  397,  per  Gaines, 
J.:  "But  there  is  another  point  of 
view  from  which  the  statute  in  ques- 
tion should  be  considered.  Its  title 
is,  '  An  act  to  define  trusts,  and  to 
provide  for  penalties  and  punishment 
of  corporations,  persons,  firms  and 
associations  of  persons  connected 
with  them,  and  to  promote  free  com- 
petition in  the  State  of  Texas.'  The 
term  '  trusts '  is  not  here  employed 
in  a  technical  legal  sense.  By  very 
recent  commercial  usage,  the  mean- 
ing of  the  word  has  been  extended  so 
as  to  comprehend  combinations  of 
corporations  or  capitalists  for  the 
purpose  of  controlling  the  price  of 
articles  of  prime  necessity,  or  the 
charges  of  transportation  for  the 
public.  The  formation  of  gigantic 
combinations  for  these  purposes  in 
late  years  has  created  alarm  and  ex- 
cited the  liveliest  interest  in  the 
public  mind.    The  amount  of  discus- 


sion which  it  has  invoked,  consider- 
ing the  time  during  which  it  has  pro- 
gressed, is  probably  without  a  paral- 
lel. See  2  Beach.  Priv.  Corp.  856, 
and  notes.  In  the  year  1888  the  dis- 
cussion seems  to  have  become  gen- 
eral, and  in  1SS9  many  Legislatures, 
including  our  own,  made  laws  for  the 
purpose  of  punishing  and  repressing 
such  conspiracies.  Id.,  1351,  note  2. 
Notable  instances  of  these  combina- 
tions were  those  of  the  manufactur- 
ing corporations  engaged  in  refining 
sugar,  which  were  declared  illegal  by 
the  Court  of  Appeals  of  New  York 
in  the  case  of  People  v.  North  River 
Sugar  Refining  Co.,  121  N.  Y.  582, 
24  N.  E.  834;  'The  Cotton-Seed  Oil 
Trust'  (State  v.  American  Cotton 
Oil  Trust,  40  La.  Ann.  8,  3  So.  409) ; 
'The  Diamond  Match  Trust'  (Rich- 
ardson v.  Buhl,  77  Mich.  632,  43  N. 
W.  1102);  'The  Chicago  Gas  Trust' 
(People  v.  Chicago  Gas  Trust  Co., 
130  111.  2G8,  22  N.  E.  798);  'The 
Standard  Oil  Trust'  (Rice  v.  Rocke- 
feller [Sup.],  9  N.  Y.  Supp.  866)  ; 
'The  Cattle  Trust'  (Gould  v.  Head, 
38  Fed.  886);  and  'The  Alcohol 
Trust'  (State  v.  Nebraska  Distilling 
Co.,  29  Neb.  700,  46  N.  W.  155). 
For  other  cases  of  like  character,  sea 
Morris  Run  Coal  Co.  v.  Barclay  Coal 
Co.,  68  Pa.  St.  173;  Arnot  v.  Coal 
Co.,  68  N.  Y.  558;  Lumber  Co.  v. 
Hayes,  76  Cal.  387,  18  Pac.  391; 
Clancey  v.  Manufacturing  Co.,  62 
Barb.  (N.  Y.)  395;  Craft  v.  McCon- 
oughy,  79  III.  346;  Bagging  Ass'n  v. 
Kock,  14  La.  Ann.  168;  Gibbs  v.  Con- 
solidated Gas  Co.,  130  U.  S.  396,  9 
S.  Ct.  553,  32  L.  Ed.  979;  Oil  Co.  v. 


7dl 


§  517       Relating  to  Strikes,  Boycotts  and  Monopolies. 


so  as  to  prevent  free  competition ;  a  combination  of  fire  insurance 
companies  to  fix  uniform  rates  of  insurance  and  agents'  commis- 
sions throughout  the  State,  though  possibly  unenforceable  among 


Adoue,  83  Tex.  650,  19  S.  W.  274; 
and  Anderson  v.  Jett,  89  Ky.  375,  12 
S.  W.  670.  The  instances  of  combi- 
nations shown  by  the  cases  cited 
serve  to  illustrate  the  causes  of  popu- 
lar discontent,  and  the  evils  which 
the  Legislatures  of  several  States 
sought  to  remedy  by  direct  statutory 
enactments  upon  the  subject.  They 
were  combinations  organized  for  the 
purpose  of  affecting  the  prices  of  ar- 
ticles of  prime  importance  in  com- 
merce, or  the  rates  of  transportation 
and  intercommunication.  The  evils 
resulting  from  these  practices  were 
doubtless  paramount  in  the  minds  of 
our  legislators  when  they  passed  the 
statute  under  consideration,  and  it 
was  to  repress  these  practices  that 
the  law  was  enacted.  By  '  the 
plain  import  of  its  language '  it 
makes  unlawful  all  combinations  to 
raise  or  depress  the  price  of  all 
articles  of  commerce  whatever,  or 
to  increase  or  diminish  the  rates 
of  transportation  of  such  arti- 
cles. It  seems  to  us,  therefore, 
that  the  words  in  the  first  subdi- 
vision of  section  1  of  the  act — 'to 
create  or  carry  out  restrictions  in 
trade ' — were  intended  only  as  a  gen- 
eral expression  of  the  purpose  of  the 
law,  and  that  the  acts  defined  in  the 
subsequent  members  of  the  section 
were  intended  as  a  specific  definition 
of  what  was  meant  in  the  first.  Na- 
tional Benefit  Co.  v.  Union  Hospital 
Co.  (Minn.),  47  K  W.  806,  was  a 
case  involving  the  question  of  a  par- 
tial restraint  of  trade,  and  in  their 
opinion  the  court  says:  'There  are 
two  classes  of  cases,  some  of  which 
appellants  have  cited,  which  are  often 


confounded  with,  but  are  clearly  dis- 
tinguishable from,  cases  like  the  pres- 
ent, and  stand  upon  an  entirely  dii 
ferent  footing.  The  one  is  a  com 
bination  between  producers  or  deal 
ers  to  limit  the  production  or  supply 
of  ,an  article  so  as  to  acquire  a 
monopoly  of  it.  and  then  unreason- 
ably enhance  prices.  The  other  is 
where  a  corporation  of  a  quasi  pub 
lie  character,  charged  with  a  public 
duty,  as  a  railway  company,  gas  com 
pany,  or  the  like,  enters  into  a  con 
tract  restrictive  of  its  business,  which 
would  disable  it  from  performing  its 
duty  to  the  public.'  We  think  it  was. 
to  combinations  of  the  character  de- 
scribed in  these  remarks  that  our 
statute  was  intended  to  apply,  and 
not  to  combinations  of  persons  en- 
gaged in  any  employment  which  may 
be  restrictive  of  that  business.  But 
it  is  a  rule  of  construction  that  each 
word  and  sentence  should  be  pre- 
sumed to  be  intended  for  a  purpose, 
and  that  each  should  be  given  effect; 
and  it  may  be  argued  that  our  con- 
struction destroys  the  effect  of  the 
words  in  the  first  clause,  and  that 
under  such  construction  they  might 
have  been  omitted  without  changing 
the  meaning  of  the  section.  But  the 
argument  defeats  itself.  If  the 
words  '  restrictions  in  trade  '  are  not 
to  be  limited  in  their  meaning,  then 
all  the  subsequent  parts  of  the  sec- 
tion were  unnecessary,  and  might 
have  been  omitted  without  altering 
the  sense.  Every  act  therein  defined 
is  clearly  a  '  restriction  in  trade,'  in 
the  most  comprehensive  meaning  of 
those  terms.  The  same  argument  may 
be   made    in   reference   to   the   word* 


TOG 


[Relating  to  Stbikes,  Boycotts  and  Monopolies.       §  51? 


its  members  as  an  unreasonable  restraint  of  trade  at  common  law, 
is  not  enjoinable  by  the  public,  nor  a  ground  for  forfeiting  its 
members'  franchises,  since  the  business  is  not  one  in  which  the 


'  article '  and  '  commodity,'  and  it 
may  be  said  they  should  be  construed 
to  have  a  different  meaning.  But,  if 
the  word  '  commodity  *  was  employed 
in  its  broadest  meaning,  it  embraced 
•  article,'  and  the  latter  might  have 
been  omitted.  The  fact  is,  the  sec- 
tion of  the  act  under  consideration 
abounds  in  tautology;  and  its  gen- 
eral structure  is  such  that  rules 
based  upon  grammatical  niceties 
should  not  prevail  over  broader  and 
more  liberal  rules  of  construction. 
Our  conclusion  is  that  the  case  stated 
in  the  petition  does  not  come  within 
the  provisions  of  the  statute;  but  we 
are  not  prepared  to  concur  with  the 
Court  of  Civil  Appeals  in  holding 
that  the  whole  act  is  inoperative.  It 
is  true  that,  while  trusts  are  defined 
in  the  first  section,  nowhere,  either  in 
that  or  any  other  section,  are  they  ex- 
pressly declared  unlawful.  The  follow- 
ing sections  provide  forfeitures  for 
corporations  and  punishment  for  per- 
sons who  '  violate  any  of  the  provi- 
sions of  the  act,'  but  they  do  not 
designate  what  shall  constitute  a  vi- 
olation of  its  provisions  in  any  direct 
terms.  Confining  ourselves  to  the 
letter  of  the  law,  there  is  a  clear 
hiatus — a  lack  of  connection  in  its 
provisions.  But  the  legislature  evi- 
dently intended  to  affix  a  punishment 
to  some  acts  and  it  is  reasonable 
to  presume  that  the  acts  they 
have  defined  were  those  intended  to  be 
forbidden.  This  intention  is  made 
more  evident  by  the  sixth  section, 
which  declares  that  a  violation  of  the 
provisions  of  the  act  is  'a  conspiracy 
against  trade,'  etc.;  also  by  the  sev- 
enth, which  provides  that  it  should 


be  sufficient,  in  an  indictment  under 
the  act,  '  to  state  the  purposes  and 
effect  of  the  trust  or  combination  and 
that  the  accused  was  a  member  of 
and  acted  with  or  in  pursuance  of  it, 
without  giving  its  name  or  descrip- 
tion, or  how,  when  or  where  it  was 
created.'  The  eighth  section  also  pro- 
vides that  it  shall  be  sufficient  to 
prove  upon  the  trial  that  *  the  trust 
or  combination  as  defined  herein  ex- 
ists and  that  tbe  defendant  belonged 
to  it  or  acted  for  or  in  connection 
with  it,  without  proving  all  the  mem- 
bers belonging  to  it,'  etc.  There  is 
no  express  declaration  that  trusts  are 
unlawful — the  acts  which  are  de- 
clared to  constitute  a  trust  are  not 
expressly  made  punishable,  nor  is 
any  act  expressly  declared  to  be  a 
violation  of  the  provisions  of  the 
statute;  yet  the  language  is  suffi- 
cient, we  think,  to  manifest  unmis- 
takably the  intention  of  the  Legisla- 
ture to  punish  as  offenses  some  of 
the  acts  defined  in  the  first  section, 
and  it  is  but  reasonable  to  conclude 
that  the  purpose  was  to  subject  them 
all  to  a  like  punishment.  The  inten- 
tion of  the  Legislature  ia  the  aim  of 
statutory  construction,  and  where, 
though  not  expressed,  it  is  clearly 
manifested  by  implication  from  the 
language  used,  we  cannot  say  that  it 
should  not  have  effect.  That  which 
is  not  expressed  in  words  may  be 
'  plainly  imported '  by  implication. 
We  have  deemed  it  proper  to  say  this 
much  upon  this  question,  although 
its  determination,  in  our  opinion,  is 
not  necessary  to  a  decision  of  this 
case.  The  other  question,  as  to  the 
validity    of   the   statute,    involves   a 


797 


§  f>17       Relating  to  Strikes,  Boycotts  and  Monopolies. 


public  has  an  interest  as  in  that  of  a  common  carrier  or  other 
corporation  having  the  power  of  eminent  domain,  or  of  a  dealer 
in  a  staple  which  is  a  prime  necessary  of  life ;  nor  is  it  a  profes- 
sional service  to  which  the  public  is  entitled.  And  a  court  has  no 
power  to  compel  an  owner  of  property  to  sell  it  against  his  will  and 


construction  of  the  Constitution,  and 
we  do  not  feel  called  upon  to  deter- 
mine it.  The  decision  of  a  grave 
constitutional  question,  although  in- 
volved in  a  case,  is  properly  preter- 
mitted until  a  controversy  arises  in 
"which  such  decision  becomes  neces- 
sary to   its   disposition. 

"  Having  determined  that  the  acts 
charged  against  the  defendants  are 
not  embraced  within  the  provisions 
of  the  statute,  it  becomes  necessary 
to  decide  whether  or  not  they  are  un- 
lawful at  common  law.  We  have 
found  no  direct  decision  in  any  court 
of  last  resort  upon  the  point.  The 
decisions  upon  cases  involving  simi- 
lar questions  are  not  altogether  har- 
monious. We  have  seen  that  con- 
tracts in  unreasonable  '  restraint  of 
trade '  are  illegal  in  the  sense  that 
they  are  not  enforceable.  Of  these, 
there  is  a  well-defined  class — those  in 
which  the  parties  seek  to  bind  them- 
selves by  an  agreement  that  one  of 
them  shall  cease  to  pursue  his  voca- 
tion. The  terms  are  usually  employed 
by  the  courts  in  this  sense.  It  is 
clear  that  the  combination  in  ques- 
tion is  not  of  this  class.  But,  em- 
ploying the  terms  in  a  looser  sense,  it 
is  frequently  said  that  agreements 
to  raise  or  depress  prices  between 
persons  engaged  in  the  same  business 
is  a  combination  in  restraint  of  trade. 
That  such  contracts,  as  applied  to 
certain  kinds  of  business,  are  unlaw- 
ful, in  the  sense  that  they  are  not 
valid,  there  is  no  doubt;  but  whether 
the   rule   extends   to   every  class   of 


business  is  a  different  question.  It 
extends  to  a  business  in  which  the 
public  have  a  right,  as  distinguished 
from  a  business  which  may  be  merely 
beneficial  to  the  public.  Such  is  the 
carrying  trade,  and  especially  the 
business  of  transportation  by  rail- 
road and  communication  by  tele- 
graph. Railroad  and  telegraph  com- 
panies derive  their  right  to  condemn 
property  from  the  fact  that  their 
business  is  established  for  a  public 
use.  So,  the  business  of  gas  com- 
panies, who  have  acquired  a  right  to 
lay  their  pipes  in  the  public  streets, 
in  analogy  to  that  of  railroad  com- 
panies, is  treated  as  public.  People 
v.  Chicago  Gas  Trust  Co.,  130  111. 
2G8,  22  N.  E.  798.  Thus  far  we  may 
clearly  see  our  way;  but  when  we 
come  to  a  business  not  public  in  its 
character,  in  the  sense  previously  in- 
dicated, difficulties  arise.  We  take  it 
as  being  well  settled  that  all  the 
combinations  among  dealers  in  pro- 
visions or  other  articles  of  prime  ne- 
cessity are  deemed  in  law  contrary  to 
public  policy,  and  contracts  to  effect 
or  carry  out  such  combinations  are 
held  void.  Bagging  Assn.  v.  Kock, 
14  La.  Ann.  168;  Lumber  Co.  v. 
Hayes,  76  Cal.  387,  18  Pac.  391 ;  Mor- 
ris Run  Coal  Co.  v.  Barclay  Coal  Co., 
68  Pa.  St.  173.  Combinations  of  this 
character  are  commonly  called  '  mo- 
nopolies,' but  they  are  not  the  tech- 
nical monopolies  known  to  the  com- 
mon law.  4  Bl.  Com.,  chap.  12.  §  9. 
The  doctrine  that  they  are  illegal 
probably  had  its  origin  in  the  laws 


798 


Relating  to  Steikes,  Boycotts  and  Monopolies.     §  51 7a 


therefor?  cannot  compel  the  selling  agent  of  a  corporation  to  sell 
its  goods  to  a  particular  individual,  though  it  appears  that  such 
corporation  controls  the  business  of  other  manufacturers  and  pro- 
ducers.98 But  where  a  combination  has  been  declared  unlawful, 
the  members  thereof  will  be  enjoined  employing  a  system  of 
espionage  upon  the  business  of  another  causing  serious  injury  to 
the  latter,  such  system  being  one  of  the  means  employed  to  carry 
out  the  combination.99 

§  517a.  Who  bound  by  injunction;  violation  of. — An  injunc- 
tion issued  against  the  officers  of  a  labor  union  and  all  their  mem- 
bers is  binding  on  each  and  every  member  of  the  union  though 
service  is  made  only  on  the  officers.1    And  an  interlocutory  injunc- 


•against  forestalling,  regrating  and 
engrossing — offenses  which,  at  a  very 
early  day  in  England,  were  made  pun- 
ishable by  statutes  which  have  since 
been  repealed.  They  were  probably  of- 
fenses at  common  law,  though  their 
precise  nature,  as  denned  in  that  sys- 
tem, seems  to  be  obscure.  1  Bish. 
Crim.  Law  (8th  ed.),  §  525.  .  .  . 
If  it  should  be  determined  that  the 
combination  charged  in  the  petition 
is  so  far  illegal  as  to  make  any  con- 
tract growing  out  of  it  void  at  com- 
mon law,  we  are  not  prepared  to  say 
that  it  would  either  subject  the  cor- 
porations engaged  in  it  to  a  forfeit- 
ure of  their  franchises  or  to  be  en- 
joined at  the  suit  of  the  State.  The 
application  of  either  rule  would  re- 
sult in  grave  consequences.  A  corpo* 
ration  which  exceeds  its  powers  in  an 
important  particular  commits  an  im- 
plied breach  of  its  contract,  and  may 
properly  be  held  subject  to  the  pen- 
alty of  a  forfeiture.  But  the  sanc- 
tion of  a  rule  of  law  which 
holds  a  contract  not  made  punishable 
merely  void,  as  against  public  policy, 
is  ordinarily  simply  to  refuse  the 
parties   any  remedy   for  its  enforce- 


ment and  it  may  be  doubted 
whether  the  courts  would  interfere  to 
enjoin  their  performance.  The  courts 
may  command  parties  to  a  legal  con- 
tract in  restraint  of  trade  to  refrain 
from  violating  its  provisions,  but  can 
they  enjoin  a  party  to  a  contract 
merely  void  to  refrain  from  its  per- 
formance? The  rule  is  to  leave  the 
parties  as  they  have  left  themselves." 
That  an  insurance  contract  is  not  an 
article  of  commerce,  see  Paul  v.  Vir- 
ginia, 8  Wall.  <U.  S.)  168,  19  L.  Ed. 
357;  State  v.  Phipps,  31  Pac.  1097; 
though  it  may  be  an  aid  to  commerce, 
Nathan  v.  Louisiana,  8  How.  (U.  S.) 
73,  12  L.  Ed.  992.  Insurance  is 
neither  "  produced,"  "  consumed," 
"  manufactured,"  "  transported,"  nor 
"  sold,"  in  the  ordinary  meaning  of 
any  of  those  words,  and  therefore  not 
within  the  import  of  the  Texas  act  of 
1889. 

98.  Locker  v.  American  Tobacco, 
121  App.  Div.  (N.  Y.)  443,  106  N. 
Y.   Supp.   115. 

99.  Straus  v.  American  Pub.  Co., 
92  App.  Div.  (N.  Y.)  350,  86  N.  Y. 
Supp.   1091. 

1.  Russell  &   Sons  v.  Stampers  &■ 


799 


§  517a     Kelating  to  Strikes,  Boycotts  and  Monopolies. 

tion  against  strikers  binds  all  who  are  parties  and  all  who  have 
notice  whether  parties  or  not,  and  if  a  breach  is  committed  by  a 
person  who  is  not  named  in  the  writ  or  order,  the  motion  should 
be  that  he  may  be  committed  for  his  contempt  in  knowingly  assist- 
ing in  the  breach.2  So  one  not  a  party  to  an  injunction  order 
restraining  interference  with  the  business  of  a  teaming  company, 
was  deemed  to  have  had  notice  of  such  order  where  it  was  posted 
in  public  places  and  on  complainant's  wagons  and  the  defendant 
was  an  acting  adviser  to,  and  participator  in,  violence  done  by  a 
mob  to  complainant's  wagons.3  Again,  it  is  decided  that  in  a 
pursuit  by  various  parties  of  an  unlawful  conspiracy,  as  in  the 
case  of  strikers,  each  is  responsible  for  the  doings  and  acts  of  the 
others  and  if  in  the  prosecution  of  the  unlawful  intent  one  of  the 
parties  goes  a  step  beyond  the  balance  of  the  party  and  does  acts 
which  the  balance  do  not  themselves  perform,  all  are  responsible 
for  what  he  does.4  So  the  fact  that  a  labor  union  does  not  authorize 
assaults  on  workmen  and  acts  of  violence  will,  it  is  held,  not 
relieve  it  from  responsibility  for  such  acts.5  And  where  receivers 
are  directed  by  order  of  court  to  operate  a  plant,  the  ordering  by  a 
labor  union  of  employees  of  such  receivers  to  quit  work  is  a 
violation  of  the  court's  order.6  But  it  is  decided  that  a  person 
cannot  be  committed  for  violating  a  restraining  order  in  a  suit 
between  private  persons,  to  which  he  was  not  made  a  party  either 
by  words  of  specific  or  general  description  and  where,  moreover, 
he  is  a  citizen  of  another  State  and  not  subject  to  be  sued  by  the 
complainant  in  the  court  in  which  the  order  was  made.7  In  Michi- 
gan it  is  decided  that  the  fact  that  an  appeal,  instead  of  a  cer- 
tiorari, or,  after  commitment,  habeas  corpus,  is  taken  to  review 


G.  L.  L.  Union,  57  Misc.  R.  96,  107,  4.  United  States    v.    Sweeney,   95 

N.  Y.  Supp.  303.  Fed.  434. 

2,  American    Steel    &>   W.    Co.    v.  5.  Southern  Ry.  Co.  v.  Machinists' 
Wire   Drawers   &  D.  M.   Unions,   90  Local  Union,  111  Fed.  49. 

Fed.  598.  6.  United    States    v.    Weber,    114 

3.  Employers'     Teaming     Co.     v.  Fed.  950. 

Teamsters'   Joint   Council,    141    Fed.  7.  In   re  Reese,  98  Fed.  984,   107 

679.  Fed.  942,  47  C.  C.  A.  87. 

800 


Relating  to  Stkikes,  Boycotts  and  Monopolies.     §  517a 

an  order  adjudging  appellant  guilty  of  contempt  in  violating  an 
injunction,  will  not  operate  to  enlarge  the  field  of  inquiry  in  the 
Supreme  Court  beyond  what  it  would  be  had  the  review  been 
sought  in  the  proper  way.8 

8.  Enterprise  Foundry  Co.  v. 
Iron  Moulders'  Union,  149  Mich.  31, 
112  N.  W.  685. 


801 
51 


§  518  Relating  to  Multiplicity  of  Suits. 


CHAPTER  XVIII. 

Relating  to  Multiplicity  of  Suits. 

Sacnon  518.  Bills  of  peace. 

618a.  What  constitutes  multiplicity. 

619.  Bills  of  peace  by  grantees  from  common  grantor. 

620.  Prerequisites  to  injunctive  relief. 

620a.  Same  subject — Necessity  of  establishing  right  at  law. 
620b.  Must  be  community  of  interest. 
620c.  Where  actions  can  be  consolidated. 

621.  Actions  in  ejectment. 

622.  Same  subject. 

623.  In  cases  of  repeated  trespass. 

624.  Same  subject. 

625.  Same  subject — General  rule  modified. 

626.  As  to  trespasses  under  unconstitutional  statute. 
527.  As  between  claimants  of  a  common  fund. 

628.  Same  subject. 

629.  As  to  victims  of  the  same  fraud. 

630.  In  case  of  bonds  fraudulently  guaranteed. 
531.  Cases  of  void  ordinance  and  tax. 

632.  Same  subject. 

533.  Where  several  lot  owners  are  illegally  assessed. 

534.  Protection  of  franchises. 

635.  Patent  infringement  suits. 

636.  Where  carrier  collects  insurance  for  numerous  owners. 

637.  Enjoining  pending  actions  in  same  and  other  courts. 

538.  Where  different  creditors  are  interested. 

539.  Different  creditors'  actions  not  enjoined. 

539a.  Where  statute  provides  mode  of  procedure — Attachment  suit*. 

540.  Where  instruments  held  by  independent  parties. 

541.  In  cases  of  interpleader. 

542.  In  cases  of  nuisance  and  waste. 

543.  Where  many  are  injured  by  same  negligence. 

544.  Enjoining  some  of  many  suits. 

Section  518.  Bills  of  peace. — To  prevent  a  multiplicity  of  suits 
is  a  favorite  ground  for  granting  injunctive  relief  in  courts  of 
equity.1    The  object  to  be  attained  by  a  resort  to  a  court  of  equity 

1.      United     States.— Consolidated  546,  16  C.  C.  A.  305,  37  U.  S.  App. 

Gas  Co.  v.  New  York,  157  Fed.  849;  378,  60  L.  Ed.   641;    Texas  &   P.   R. 

Hoist    v.    Savannah    Elec.    Co.,    131  Co.  v.  Kuteman,  54  Fed.  547,  4  C.  C. 

Fed.   931;    Sanford   v.   Poe,   69   Fed.  A.  503,  13  U.  S.  App.  99. 

802 


Kelatixg  to  Multiplicity  of  Suits. 


§518 


in  such  cases  is  to  obtain  a  final  determination  of  the  particular 
right  in  controversy,  as  between  all  the  parties  concerned,  by  a 
single  issue,  instead  of  leaving  the  right  open  to  litigation  by 
separate  suits  brought  by  each  of  the  parties  in  interest.2  It  began, 
probably,  in  the  bill  of  peace,  a  remedy  rendered  necessary  by  the 
common  law  rule,  that  a  judgment  in  an  action  of  ejectment  did 
not  conclude  the  plaintiff  from  bringing  successive  suits  upon 
the  same  cause  of  action.  In  order  to  prevent  this  vexatious 
repetition  of  suits,  the  defendant,  after  a  judgment  at  law  in  his 
favor,  could,  by  a  bill  of  peace,  enjoin  the  plaintiff  from  bringing 


Alabama. — Cleveland  v.  Insurance 
Co.  (Ala.  1907),  44  So.  37. 

Arkansas. — Greedup  v.  Franklin 
County,  33  Ark.  101. 

California. — Southern  Pac.  Co.  v. 
Robinson,  132  Cal.  408,  64  Pac.  572. 

Connecticut. — Colt  v.  Cornwell,  2 
Root,  109. 

DelavMre. — Hughlete  v.  Harris,  1 
Del.  Ch.  349,  12  Am.  Dec.  104. 

Georgia. — Mayer  v.  Coley,  80  Ga. 
207,  7  S.  E.  164;  Guess  v.  Stone 
Mountain  G.  &  R.  Co.,  67  Ga.  215. 

Illinois. — North  American  Ins.  Co. 
t.  Yates,  116  111.  App.  217,  aff'd  214 
111.  272,  73  N.  E.  423;  Adams  v. 
Oberndorf,  121  111.  App.  497;  Kappes 
v.  City  of  Chicago,  119  111.  App.  436. 

Kansas. — Jordan  v.  Western  Union 
Tel.  Co.,  69  Kan.  140,  76  Pac.  396. 

Maine. — Farnington  Vill.  Corp.  v. 
Sandy  River  Nat.  Bank,  85  Me.  46, 
26  Atl.  965. 

Maryland. — Chesapeake  Brew.  Co. 
r.  Mt.  Vernon  Brew.  Co.  (Md.  1908), 
68  Atl.  1046;  Glenn  v.  Fowler,  8  G. 
&  J.  340. 

Massachusetts. — Carr  v.  Silloway, 
105  Mass.  543. 

Mississippi. — Bishop  v.  Rosen- 
bamn,  58  Miss.  84. 

Missouri. — Aimee  Realty  Co.  v. 
Holler    (Mo.  App.   1907),   106  S.  W. 


588;  State  v.  Louisiana  B.  G.  &  A. 
G.  R.  Co.,  116  Mo.  App.  175,  92  S. 
W.  153. 

ATeio  York. — Norfolk  &  New  Bruns- 
wick H.  Co.  v.  Arnold,  143  N.  Y.  265; 
Pfohl  v.  Simpson,  74  N.  Y.  137; 
Campbell  v.  Seaman,  63  N.  Y.  568, 
20  Am.  Rep.  567;  Pennsylvania  Coal 
Co.  v.  Delaware  &  H.  C.  Co.,  31  N.  Y. 
91 ;  Fraley  &  Carey  Co.  v.  Delmont, 
110  App.  Div.  468,  97  N.  Y.  Supp. 
408. 

Ohio. — Yeoman  v.  Lasley,  36  Ohio 
St.  416. 

Pennsylvania. — Lyons  v.  Importers 
&  Traders'  Nat.  Bank,  214  Pa.  St. 
428,  63  Atl.  827. 

South  Carolina. — Thomson  v.  Pal- 
mer, 2  Rich.  Eq.  32. 

Tennessee. — Walker  v.  Fox,  85 
Tenn.  154,  2  S.  W.  98. 

Vermont. — Paddock  v.  Palmer,  19 
Vt.  581. 

The  Texas  system  of  procedure  has 
been  held  by  the  Supreme  Court  of 
that  State  to  be  essentially  equitable 
in  its  policy,  and  designed  to  prevent 
more  than  one  action  growing  out  of 
one  subject  matter  of  litigation. 
Clegg  v.  Varnell,  18  Tex.  294;  Che- 
valier v.  Rusk,  Dallam  (Tex.),  611; 
Binge  v.  Smith,  Dallam    (Tex.),  616. 

2.  Lehigh  Valley  R.  R.  Co.  v.  Mc- 


803 


£  .")18  Relating}  to  Multiplicity  of  Suits. 

further  suits.3  The  principle  of  the  bill  of  peace  has  been  extended 
to  cases  where  a  great  number  of  parties  have  a  common  cause 
of  action  against  the  same  party,  growing  out  of  the  same  inquiry, 
and  depending  on  the  same  questions  of  law  and  fact.4  And  it  is 
declared  that  commonly  chancery  will  assume  jurisdiction  in  the 
first  instance  to  prevent  a  multiplicity  of  suits  where  a  party 
prosecutes  or  defends  a  right  against  a  great  number  of  persons 
or  where  a  great  number  of  persons  prosecute  or  defend  a  right 
against  a  single  individual.0  The  power  of  a  court  of  equity  has 
been  exercised  where  the  holder  of  thirty  time  checks,  each  for 
twenty  dollars,  was  about  to  bring  as  many  separate  actions  in  a 
court  of  a  justice  of  the  peace,  and  the  justice  refused  to  consoli- 
date them,  and  the  aggregate  amount  exceeded  his  jurisdiction, 
it  being  held  an  injunction  would  lie  to  restrain  the  separate 
actions,  as  it  was  the  only  adequate  remedy  to  shield  the  plaintiff 
from  vexatious  and  unnecessary  litigation.6  And  it  has  also  been 
decided  that  separate  actions  for  the  recovery  of  instalments  as 
they  fall  due  may  be  enjoined  where  an  action  is  pending  to  re- 
cover prior  instalments  in  which  the  right  to  collect  any  is  in- 

Farlan,  31  N.  J.  Eq.  730.  Per  De-  Dowe,  70  Tex.  5,  7  S.  W.  368;  George 
pue,  J.  v.  Dean,  47  Tex.  73 ;  Blessing  v.  Gal- 

3.  Galveston,  H.  &  S.  A.  R.  Co.  v.       veston  City,  42  Tex.  641. 

Dowe,  70  Tex.  5,  7  S.  W.  368,  wherein  5.  Imperial  Fire  Ins.  Co.  v.  Gun- 
it  was  said  by  Gaines,  J.,  that  it  had  ning,  81  111.  236.  Per  Scott,  J. 
its  beginning  in  the  bill  of  peace,  a  6.  Galveston  H.  &  S.  A.  R.  Co.  v. 
remedy  rendered  necessary  by  the  Dowe,  70  Tex.  5,  7  S.  W.  368.  See, 
principle  of  the  common  law  that  a  also,  Third  Ave.  R.  Co.  v.  New  York, 
judgment  in  an  action  of  ejectment  54  N.  Y.  159,  where  the  city  had  be- 
in  favor  of  the  defendant  was  not  gun  77  actions  against  plaintiff,  in  a 
conclusive,  and  did  not  estop  the  justice's  court,  to  recover  penalties 
plaintiff  from  bringing  successive  imposed  by  city  ordinance  for  run- 
suits  upon  the  same  cause  of  action.  ning  cars  without  license,  and  was 
In  order  to  relieve  a  defendant  from  enjoined  by  the  Supreme  Court  from 
vexatious  litigation,  after  a  judgment  prosecuting  more  than  one,  since  the 
at  law  in  his  favor,  the  Court  of  justice's  court  had  no  power  to  grant 
Chancery  permitted  him  to  file  his  the  injunction  or  to  consolidate  the 
bill  and  by  its  decree  to  preclude  the  actions,  and  the  prosecution  of  all 
plaintiff  from  vexing  him  with  any  the  suits  would  be  unnecessarily  op- 
further  suit.  pressive. 

4.  Galveston  H.  &  S.  A.  R.  Co.  v. 

804 


Relating  to  Multiplicity  of  Suits.     §§  518a,  519 

volved.7  And  likewise  the  procuring  of  successive  attachments 
may  be  enjoined  where  the  procuring  of  them  amounts  to  an  abuse 
of  process  and  is  vexatious.8 

§  518a.  What  constitutes  multiplicity. — Multiplicity,  as  em- 
ployed in  the  statement  that  equity  will  interpose  to  prevent  a 
multiplicity  of  suits,  does  not  mean  a  multitude  merely,  and  an 
injunction  will  not  be  granted  on  that  ground  where  the  object  is 
to  obtain  a  consolidation  of  actions  or  to  save  the  expense  of  sepa- 
rate actions.9  And  it  is  said  that  two  suits  have  never  been  con- 
sidered sufficient  to  sustain  a  bill  in  equity  for  such  a  cause.10  So 
in  a  case  in  Alabama  it  is  declared  that  a  bill  of  peace  will  lie 
only  when  the  right  claimed  affects  many  persons,  and  that  if  the 
right  is  disputed  between  two  persons  only,  not  for  themselves  and 
all  others  in  interest,  but  for  themselves  alone,  the  bill  will  be 
dismissed." 

§  519.  Bill  of  peace  by  grantees  from  common  grantor. — One 
or  more  owners  of  lots  in  severalty,  under  a  common  source  of 
title,  may  maintain  a  bill  for  themselves  and  all  others  similarly 
situated  who  may  become  parties,  to  quiet  title  to  real  estate 
against  an  adverse  claim,  alleged  to  be  superior  to  the  title  of 
their  common  grantor,  but  repeatedly  adjudged  invalid  in  eject- 

7.  Fraley  &  Cary  Co.  v.  Delmont,  ing  them  to  a  court  of  law,  and  thus 
110  App.  Div.  (N.  Y.)  468,  97  N.  Y.  avoid  circuity  of  action.  And  so,  to 
Supp.  408.  prevent  a  multiplicity  of  suits,  as  of 

8.  Lyons  v.  Importers  &  Traders'  one  against  many,  or  of  many  against 
Nat.  Bank,  214  Pa.  St.  428,  63  Atl.  one,  in  relation  to  the  same  cause  of 
827.  action,  the  aid  of  equity  may  be  in- 

9.  Murphy  v.  City  of  Wilmington,  voked.  But  multiplicity  does  not 
66  Houst  (Del.),  108,  22  Am.  St.  mean  multitude,  and  equity  will  not 
Rep.  345,  wherein  the  court  said:  interfere  where  the  object  is  to  ob- 
"  Equity  will  interpose  in  a  proper  tain  a  consolidation  of  actions,  or  to 
case  to  prevent  a  multiplicity  of  save  the  expense  of  separate  actions." 
suits,  excessive  litigation  or  circuity  Per  Wales,  J. 

of  action.     A  court  of  equity,  on  a  10.  McHenry  v.  Hazard,  45  Barb. 

bill  being  filed  for  a  discovery,  will  (N.  Y.)    657. 

sometimes  proceed    to    take  jurisdic-  11-  Moses  v.  Mayor  of  Mobile,  52 

tion  of  all  the  matters  in  controversy  Ala.  198. 

between  the  parties,  instead  of  send- 

805 


$520 


jRelatinq  to  Multiplicity  of  Suits. 


merit  suits.  And  a  right  given  by  a  Minnesota  statute  to  a  claim- 
ant of  vacant  lands,  to  sue  to  quiet  title,  may  be  enforced  in  tho 
Federal  courts.12 


§  520.  Prerequisites  to  injunctive  relief. — While  the  preven- 
tion of  a  multiplicity  of  suits  is  a  ground  of  equity  jurisdiction, 


12.  Prentice  v.  Duluth  Storage 
Co.,  58  Fed.  437,  per  Sanborn,  J.: 
"  That  this  suit  was  well  and  wisely 
brought,  admits  of  no  discussion. 
Owners  of  lots  in  severalty  in  posses- 
sion, under  a  common  source  of  title, 
may  join  in  a  bill  of  peace,  to  quiet 
their  title,  and  to  enjoin  the  prosecu- 
tion of  an  adverse  claim,  repeatedly 
adjudged  invalid  in  suits  in  eject- 
ment, the  validity  of  which  depends 
entirely  upon  the  superiority  of  the 
title  of  their  common  grantor.  The 
law  and  the  facts  which  determine 
the  validity  of  the  title  of  one  such 
owner,  also  determine  the  validity  of 
the  title  of  every  such  owner.  While 
they  are  owners  in  severalty,  they 
are  united  in  interest  in  the  sole 
question  at  issue  in  such  a  case — the 
validity  of  the  title  of  their  common 
grantor.  A  suit  based  upon  such  a 
bill  is  of  general  equitable  cogni- 
zance. It  prevents  a  multiplicity  of 
suits,  and  affords  the  only  adequate 
remedy  for  such  a  multitude  of  sev- 
eral owners  as  occupy  the  heart  of  a 
great  city,  when  their  common  source 
of  title  is  assailed.  Osborne  v.  Rail- 
road Co.,  43  Fed.  824;  Crews  v  Bur- 
cham,  1  Black,  352,  358.  The  objec- 
tion that  some  of  the  lots  in  contro- 
versy are  not  in  the  possession  ot  any 
of  the  complainants,  but  are  vacant 
and  unoccupied,  is  without  merit. 
The  statutes  of  Minnesota  provide 
that  any  person  in  possession  ot  real 
property,  and  any  person  claiming 
title  to  vacant  and  unoccupied   real 


estate,  may  alike  bring  a  suit  against 
any  person  claiming  an  adverse  es- 
tate or  interest  therein,  for  the  pur- 
pose of  determining  such  adverse 
claim,  and  the  rights  of  the  parties 
respectively.  Gen.  St.  Minn.,  1878, 
chap.  75,  §  2.  These  statutes  also 
provide  that  whenever  two  or  more 
persons  claim  lots  or  tracts  of  land 
in  severalty,  under  conveyances  from 
the  same  grantor,  as  the  common 
source  of  title,  and  a  claim  of  title 
thereto  is  made  by  any  one  as  against 
the  title  of  such  grantor,  any  one 
claiming  undei  such  grantor  may 
bring  an  action  on  behalf  of  himself 
and  all  others  who  may  come  in  and 
become  parties  to  such  action, 
against  the  person  claiming  ad- 
versely, to  have  the  title  of  such 
grantor  quieted  as  to  the  real  estate 
claimed  by  the  complainant,  and 
those  who  become  parties  to  the  ac- 
tion; and  that  any  person  who 
claims  title  under  the  common 
grantor,  and  whose  title  is  contro- 
verted by  the  same  defendant,  upon 
the  same  ground  as  that  of  the  com- 
plainant, may  come  in  as  of  course, 
and  become  a  party  in  such  action, 
by  filing  a  statement  ot  these  facts. 
Id.,  §  14.  It  a  bill  of  peace  by  one  out  of 
possession,  to  quiet  a  title  that  had 
never  been  adjudicated  in  an  action 
at  law  to  which  he  was  a  party, 
could  not  have  been  maintained  in 
the  Federal  court  before  the  enact- 
ment ot  these  statutes,  then  they  cre- 
ate a  right  to    a    valuable   remedy, 


S06 


Relating  to  Multiplicity  of  Suits.  §  520 

this  ground  of  interference  does  not  confer  remedial  rights  where 
none  existed  before,  and  the  exercise  of  the  jurisdiction  assumes 
that  the  complainant  in  such  cases  has  some  defense,  either  legal 
or  equitable  to  the  numerous  suits  instituted  or  threatened  against 
him.13  And  in  an  early  case  in  Delaware  it  is  decided  that  the 
principle  that  where  an  injunction  is  granted  to  restrain  a  wrong, 
equity  will  give  full  relief  in  order  to  prevent  a  multiplicity  of 
suits,  is  limited  to  cases  in  which  there  exists  a  right  in  equity 
to  relief  for  the  wrong  already  done,  independently  of  the  pendency 
of  an  injunction  to  prevent  future  wrong.14  The  mere  fact,  also, 
that  numerous  independent  parties  hold  separate  instruments 
upon  which  they  might  bring  separate  suits,  is  not  sufficient  to 
justify  a  court  of  equity  in  entertaining  an  action  by  the  maker 
to  compel  them  to  litigate  their  claims  in  a  forum  which  he  selects.15 
Nor  will  an  injunction  lie  to  prevent  a  multiplicity  of  suits,  upon, 
a  mere  allegation  of  complainant's  belief  that  such  suits  are 
intended,  or  where  there  is  no  evidence  of  threats  to  bring  them, 
<»r  where  the  complainant  was  himself  the  author  of  the  situation 
which  annoys  and  troubles  him.16  The  general  rule  that  a  prose- 
cution at  law  will  not  be  enjoined  when  the  question  is  the  same 

which   the  complainants  might  avail  Crawfordville   First  Nat.   Bank,    112 
themselves  of  in  that  court.     Rights  U.   S.  405,  5   S.   Ct.   213,  28  L.   EdL 
created  by  State  statutes  may  be  en-  633;  Ex  parte  McNiel,  13  Wall.  236, 
forced   in   the   Federal    courts    when  243,  20  L.  Ed.  624." 
those   statutes    prescribe   methods    of  13.    Storrs   v.   Pensacola   &   A.   R. 
procedure  which,  by  their  terms,  are  Co.,  29  Fla.  617,  11  So.  226. 
to  be  pursued  in  the  State  courts  of  14.  Hughlete  v.  Harris,  1  Del.  Ch» 
original    jurisdiction,    and    there    is  349,  12  Am.  Dec.  104. 
nothing  of  a  substantive  character  in  15.   Town  of  Venice  v.   Woodruff, 
the  methods  prescribed   which  makes  62  N.  Y.  462,  20  Am.  Rep.  495,  hold- 
it  impossible  for  the  Federal  courts  ing  that  he  must  in  addition  make 
to  substantially    follow    those  meth-  out  a  case  which  would  sustain  the 
ods.      Clark  v.   Smith,    13   Pet.    195,  action  against  one  of  them  alone. 
203,  10  L.  Ed.  123;   Fitch  v.  Creigh-  16.   Farmington  Village  v.   Sandy 
ton,   24  How.     159,     16    L.    E.   596;  Riv.  Nat.  Bank,  85  Me.  46,  26  Atl. 
Stark  v.  Starrs,  6  Wall.  402,  410,  18  965;    Wilkes  v.  Wilkes,   4  Edw.   Ch. 
L.  Ed.  925;   Holland  v.  Challen,  110  (N.    Y.)     630.      And    see    Lockwood 
U.  S.  15,  3  S.  Ct.  495,  28  L.  Ed.  52;  Company  v.  Lawrence,   77  Me.   297;, 
Railway    Co.    v.    Whitton,   13  Wall.  Wolfe  v.  Burke,  56  N.  Y.  115. 
270,  286,  20  L.  Ed.  571;  Reynolds  v. 

807 


§  520a  lvELATING    TO    MULTIPLICITY    OF    SUITS. 

at  law  and  in  equity,17  has  an  exception  where  an  injunction  is 
necessary  to  protect  a  defendant  from  vexatious  litigation,  but 
in  such  cases,  an  injunction  is  granted  only  after  the  controverted 
right  has  been  determined  in  defendant's  favor,  in  a  previous 
action.18  Where  it  is  sought  to  restrain  a  multiplicity  of  suits 
it  is  said  to  be  immaterial  whether  the  rights  of  action  arise  from 
general  principles  of  law  or  from  particular  provisions  of  consti- 
tutions or  statutes.19  Again,  the  objection  of  a  multiplicity  of 
suits  must  be  one  to  which  the  plaintiff  will  be  subject,  and  of 
which  he  may  complain.20  In  this  connection  it  is  said  also  that 
the  application  and  limits  of  the  doctrine  that  a  court  of  equity 
may  intervene  to  prevent  a  multiplicity  of  suits  is  not  well 
settled.21 

§  520a.  Same  subject;  necessity  of  establishing  right  at  law. 
— It  may  be  stated  as  a  general  rule  that  a  bill  of  peace  can  not 
be  maintained  until  the  complainant  has  established  his  right  at 
law.22  So  in  an  early  case  in  New  York  it  is  said  that  a  bill  of 
peace  enjoining  litigation  at  law  seems  to  have  been  allowed  only 
in  one  of  these  two  cases :  either  where  the  plaintiff  has  already 
satisfactorily  established  his  right  at  law,  or,  where  the  persons 
who  controvert  it  are  so  numerous  as  to  render  an  issue,  under  the 
direction  of  the  court  indispensable  to  embrace  all  the  parties  con- 
cerned, and  to  save  multiplicity  of  suits.23  But  while,  ordinarily, 
a  bill  will  not  be  entertained  to  restrain  the  bringing  of  vexatious 
suits,  until  the  right  involved  has  been  determined  by  an  adjudi- 
cation at  law,  yet  where,  from  the  very  nature  of  such  suits,  the 
complainant  has  no  opportunity  to  establish  his  right,  his  bill  for 
an  injunction  may  be  maintained  without  a  previous  adjudication 

17.  Wolfe  v.  Burke,  56  N.  Y.  118.         R.  Co.  v.  Dowe,  70  Tex.  5,  7  S.   W. 

18.  Wallack  v.  Society,  etc.,  67  N.       368. 

Y.  23,  28;   West  v.  Mayor,  10  Paige  22.  Gunn  v.  Harrison,  7  Ala.  585; 

(N.  Y.),  539.  Imperial  Fire  Ins.  Co.  v.  Gunning,  81 

19.  Pfohl  v.  Simpson,  74  N.  Y.  111.  236;  West  v.  Mayor  of  New  York, 
137.  10  Paige  Ch.   (N.  Y.)   539. 

20.  Crevier  v.  Mayor  of  New  York,  23.  Eldridge  v.  Hill,  2  Johns.  Ch. 
12  Abb.  Pr.  N.  S.  (N.  Y.)   340.  (N.    Y.)    281. 

21.  Galveston,  Harrisburg  &  S.  A. 

808 


Relating  to  Multiplicity  of  Suits. 


§520b 


in  a  law  court.24  Thus,  as  an  adjudication  in  a  suit  of  trespass 
against  a  tenant  does  not  determine  the  landlord's  title,  the  land- 
lord may  maintain  a  bill  of  peace  to  restrain  the  bringing  of  such 
vexatious  suits  against  the  tenant  whom  he  is  bound  to  secure  in 
the  possession  of  the  premises.25  And  the  fact  that  such  right  has 
not  been  established  will  not  prevent  the  obtaining  of  an  injunction 
where  the  object  is  to  prevent  a  multiplicity  of  suits  already  com- 
menced or  threatened  and  which  amount  to  vexatious  litigation.25 
And  although  such  right  must  be  established  it  is  not  material  how 
many  trials  there  have  been.27  So  where  a  bill  is  filed  in  a  court 
of  chancery  for  the  purpose  of  preventing  a  multiplicity  of  suits 
at  law,  and  to  have  a  title  tried  and  finally  settled,  by  one  suit, 
under  the  direction  of  the  chancellor,  it  is  decided  that  the  bill 
will  be  sustained  though  there  have  been  but  one  or  two  trials  at 
law.28 


§  520b.  Must  be  community  of  interest. — The  courts  will  not 
enjoin  the  prosecution  of  another  action  or  actions  on  the  ground 
of  preventing  a  multiplicity  of  suits  where  there  is  not  a  com- 
munity of  interest  among  the  parties  whom  it  is  sought  to  re- 
strain.29 The  rule  is  stated  in  a  case  in  Minnesota  that  where  a 
common  right  or  a  community  of  interest  in  the  subject  matter  of 
a  controversy,  or  a  common  title,  from  which  all  the  defendants' 
separate  claims,  and  all  questions  at  issue  between  the  parties 
plaintiff  and  defendants,  have  arisen,  can  be  shown  at  the  trial, 
an  equitable  action  will  lie  to  restrain   and  enjoin  the  several 


24.  Milford  Ch.  PL,  4th  Am.  ed., 
146;  Bush  v.  Western,  Prec.  in  Ch. 
530;  Dorset  v.  Girdler,  Prec.  in  Ch. 
531. 

25.  Langdon  v.  Templeton,  61  Vt. 
119,  17  Atl.  839. 

26.  Gunn  v.  Harrison,  7  Ala.  585 ; 
Galveston,  Harrisburg  &  S.  A.  R.  Co. 
v.  Dowe,  70  Tex.  5,  7  S.  W.  368. 

27.  Pratt  v.  Kendig,  128  111.  293, 
21  N.  E.  495. 

28.  Trustees  of  Huntington  v. 
Nicoll,  3  Johns.   (N.  Y.)  566. 


29.  Thibette  v.  Illinois  Cent.  R. 
R.  Co.,  70  Miss.  182,  12  So.  32,  35 
Am.  St.  Rep.  642;  National  Union 
Bank  v.  London  &  River  P.  Bank,  2 
App.  Div.  (N.  Y.)  208..  37  N.  Y. 
Supp.  741;  New  York  Security  &  T. 
Co.  v.  Blydenstein,  70  Hun  (N.  Y.) 
216,  24  N.  Y.  Supp.  164;  Crevier  v. 
Mayor  of  New  York,  12  Abb.  Prac. 
N.  S.  (N.  Y.)  340;  National  Tube 
Co.  v.  Smith  (W.  Va.  1905),  50  S. 
E.  717.  See  Scottish  Union  Ins.  Co, 
v.  Mohlman  Co.,  73  Fed.  66. 


800 


§  520c  Relating  to  Multiplicity  of  SurTs. 

defendants  from  prosecuting  separate  actions  at  law  against  the 
plaintiff.30  It  is  not,  however,  indispensable  that  the  defendants 
should  have  a  co-extensive  common  interest  in  the  right  in  dispute, 
or  that  each  should  have  acquired  his  interest  in  the  same  manner, 
or  at  the  same  time,  but  there  must  be  a  general  right  in  the  com- 
plainant, in  which  the  defendants  have  a  common  interest,  which 
may  be  established  against  all  who  controvert  it,  by  a  single  issue.31 
Equity  jurisdiction  has  also  sometimes  been  exercised  by  the  courts 
to  prevent  a  multiplicity  of  suits  where  there  was  merely  a  com- 
munity of  interests  in  the  questions  of  law  and  of  fact  involved, 
•or  in  kind  and  form  of  remedy  demanded  and  obtained  by  or 
against  each  individual.32  In  a  case  in  Mississippi,  however,  it  is 
held  that  it  is  not  enough  that  there  is  a  community  of  interest 
merely  in  the  question  of  law  or  fact  involved.33 

§  520c.  Where  actions  can  be  consolidated. — Where  a  party 
has  several  separate  claims  and  in  the  tribunal  which  has  jurisdic- 
tion of  the  demands  there  can  be  a  consolidation,  it  is  the  duty  of 
a  party  to  resort  to  this  remedy,  and  equity  will  not  interfere  as 
there  is  an  adequate  remedy  at  law,  but  if  the  demands  when 
consolidated  would  be  in  excess  of  the  jurisdiction  of  the  court  a 
defendant  can  not  resort  to  this  remedy,  as  there  can  be  no  con- 
solidation and  a  court  of  equity  may  then  intervene  to  prevent  the 
bringing  of  separate  suits  on  each  demand  for  the  purpose  of 
harassing  the  defendant  by  a  multiplicity  of  suits.34  So  the  appro- 
priate relief  against  successive  suits  by  the  same  plaintiff  for 
damages  arising  from  an  injury  which  is  continuous,  is,  by  appli- 
cation for  a  consolidation  of  actions,  or  for  a  stay  of  proceedings. 

To  justify  a  bill  of  peace  there  McFarlan,    31    N.    J.    Eq.    730.      Per 

must  be  in  dispute  a  general  right  in  Depue,  J. 

the    complainant,    in    which    the    de-  32.  City  of  Albert  Lea  v.  Nielsen, 

fendants    are    interested,    of    such    a  83  Minn.  246,  86  N.  W.  83. 
character  that  its  existence  may  be  33.  Tribette  v.  Illinois  Cent.  R.  R. 

finally  determined  in  a  single  issue.  Co.,  70  Miss.  182,  12  So.  32,  35  Am. 

Lehigh  Valley  R.  R.  Co.  v.  McFarlan,  St.  Rep.  642. 
31  N.  J.  Eq.  730.  34.  Galveston,  Harrisburg  &,  S.  A 

30.  City  of  Albert  Lea  v.  Nielson,  R.   Co.  v.  Dowe,  70  Tex.  6,   7  S.  W. 
S3  Minn.  246,  86  N.  W.  83.  368. 

31.  Lehigh   Valley   R.    R.    Co.    v. 

S10 


Relating  to  Multiplicity  of  Suits.  §  521 

and  not  by  a  bill  in  chancery,  unless  the  right  in  controversy  haa 
once  been  determined  adversely  to  plaintiff.30  And  the  fact  that 
each  of  two  partners  brings  a  separate  suit  in  a  justice's  court,  for 
killing  live  stock  on  its  track,  and  deprives  the  company  of  the 
right  of  appeal,  by  praying  for  judgment  in  each  case  below  the 
jurisdictional  amount  of  the  County  Court,  will  not  authorize 
an  injunction  against  the  prosecution  of  the  actions  in  the  justice's 
court,  since  the  company  has  the  right  to  consolidate  them,  and 
then  appeal  to  the  County  Court  if  the  judgment  is  adverse.36 

§  521.  Actions  in  ejectment. — Formerly  the  action  in  eject- 
ment at  common  law  was  founded  upon  a  fictitious  demise  between 
fictitious  parties,  and  a  recovery  in  one  action  was  no  bar  to  any 
number  of  other  similar  actions.  Thus  the  party  in  possession, 
though  successful  in  every  instance,  might  be  harassed  by  a  litiga- 
tion indefinitely  renewed.  If,  however,  he  could  show  he  had  been, 
in  possession,  and  had  been  disturbed  in  his  possession  by  repeated 
actions,  and  that  his  right  had  been  established  by  repeated  judg- 
ments in  his  favor,  a  bill  of  peace  would  lie  in  equity,  and  a  per- 
petual injunction  would  be  granted  to  quiet  his  possession  from 
any  further  litigation  from  the  same  source.37  And  where  a  bill 
of  peace  is  filed  to  restrain  a  defendant  from  prosecuting  his  action 
of  ejectment  a  court  of  equity  may  interfere  for  the  purpose  of 
suppressing  useless,  vexatious  and  oppressive  litigation  by  the 
bringing  of  a  multiplicity  of  suits.38     But  where  it  is  sought  to 

35.  Lehigh  Valley  R.  R.  Co.  v.  one  suit.  But  the  opinion  in  that 
McFarlan,  31  X.  J.  Eq.  730.  Per  case  recognizes  and  approves  the  doc- 
Depue,   J.  trine  that,  if  the  right  of  consolida- 

36.  Gulf,  etc.,  R.  Co.  v.  Bacon  tion  exists,  the  injunction  should  be 
(Tex.),  21   S.  W.  783,  per  Key,  J.:  refused." 

"It  is  true,  as  held  in  Galveston,  etc.,  37.  Holland  v.  Challen,  110  U.  S. 

R.  Co.  v.  Dowe,  70  Tex.  10,  7  S.  W.  15,   19,  3  S.  Ct.  495,  28  L.  Ed.  52; 

368,  that  the  District  Court  has  ju-  Stark  v.  Starr,  6  Wall.   (U.  S.)   402, 

risdiction   to  enjoin   the  bringing  of  18  L.  Ed.  925;   Curtis  v.  Sutter,  15 

a    multiplicity    of   unjust   and   vexa-  Cal.  259 ;  Shepley  v.  Rangely,  2  Ware, 

tious  suits  in  a  justice  of  the  peac»  246;      Devonsher    v.    Newenham,     2 

court,  when  the  aggregate  amount,  or  Schoales  &  Lef.  199. 

any  other  fact,  will  preclude  the  right  38.  Bond   v.    Little,    10   Ga.    395; 

to  have  all  of  them  consolidated  into  Pratt  v.  Kendig,  128  111.  293,  21  N. 

811 


§  522  Relating  to  Multiplicity  of  Suits. 

restrain  the  prosecution  of  an  action  of  ejectment  the  court  will 
not  interfere  in  a  doubtful  case  or  where  the  complainant's  right 
has  not  been  satisfactorily  established  at  law.39  To  maintain  a  bill 
quia  timet,  which  differed  from  a  bill  of  peace  in  that  its  object 
was  not  so  much  to  put  an  end  to  actual  litigation  as  to  prevenl 
future  litigation,  by  removing  existing  causes  of  controversy  as  to 
title,  it  was  generally  necessary  that  the  plaintiff  should  be  in 
possession,  and  except  where  the  defendants  were  numerous,  that 
his  title  should  have  been  established  at  law  or  founded  on  undis- 
puted evidence  or  long-continued  possession.40  In  most  of  the 
States  the  action  in  ejectment  at  common  law,  with  its  fictions,  has 
been  abolished  by  statute,  and  a  new  form  of  action  substituted.41 

§  522.  Same  subject. — A  married  woman,  in  possession  of  her 
separate  real  estate,  may  enjoin  a  purchaser  of  said  property  at 
sheriff's  sale,  under  a  judgment  against  her  husband,  from  bring- 
ing repeated  actions  in  ejectment  against  her,  which  he  does  not 
prosecute  to  judgment,  but  takes  voluntary  non-suits  of,  with  the 
intent  to  worry  her  into  paying  her  husband's  debt.42  And  where 
lands  are  levied  on  by  execution,  and  claims  interposed  and  with 
drawn  by  successive  claimants  to  whom  the  property  is  conveyed, 
a  claimant  may  be  enjoined  from  withdrawing  his  claim,  and  the 
holder  of  the  title  from  transferring  it,  until  the  question  as  to  its 
liability  to  the  lien  can  be  adjudicated.43  But  a  second  action  of 
ejectment,  though  involving  the  same  issues  of  fact  as  those  decided 
against  the  plaintiff  in  the  first  action,  will  not  be  enjoined  as 

E.  495;   Woods  v.  Monroe,  17  Mich.  to  the  effect  of  the  Nebraska  statute; 

238.  and  Clark  v.  Smith,  13  Pet.   (U.S.) 

39.  Bond  v.  Little,  10  Ga.  395;  195,  10  L.  Ed.  123,  as  to  the  effect  of 
Dedman  v.  Chiles,  3  T.  B.  Mon.  (Ky.)  the  Kentucky  statute. 

426.  42.  Thompson's    Appeal,    107    Pa. 

40.  Alexander  v.  Pendleton,  8  St.  559.  And  see  Mayer  v.  Walter, 
Cranch.  (U.  S.)  462.  3  L.  Ed.  624;  64  Pa.  St.  286;  Lyon's  Appeal,  61 
Peirsoll    v.    Elliott    6    Pet.    (U.    S.)  Pa.   St.   15. 

95,  8  L.  Ed.  332;  Orton  v.  Smith,  18  43.  Fields  v.  Ralston,  30  Ga.   79, 

How.  (U.  S.)  263,  15  L.  Ed.  393.  per  Lumpkin,  J.:     "Otherwise  we  see 

41.  See  Holland  v.  Challen,  110  U.  no  end  to  the  litigation." 
S.  15,  3  S.  Ct.  495,  28  L.  Ed.  52,  as 

812 


Kelating  to  Multiplicity  of  Suits.  §  523 

vexatious,  where  the  statutes  of  the  State  in  which  the  land  lies 
allow  a  defeated  party  in  ejectment  to  bring  a  second  action.44 

§  523.  In  cases  of  repeated  trespass — Where  the  evidence  indi- 
cates that  trespasses  are  likely  to  be  repeated,  an  injunction  will 
lie  in  order  to  prevent  a  multiplicity  of  suits.  This  rule  was 
applied  where  trespasses  already  committed  by  a  road  overseer, 
in  removing  obstructions  from  an  alleged  highway  which  had  no 
existence,  would  probably  be  indefinitely  repeated.4"  And  the  rule 
was  applied  where  the  defendant  had  piled  heavy  boulders  on 
plaintiff's  lots,  and  plaintiff's  only  remedy  at  law  was  repeated 
actions  for  damages.46  And  the  owner  of  land  is  entitled  to  an 
injunction  against  trespass  by  a  field  tenant  in  pasturing  the  land, 
in  order  to  avoid  a  multiplicity  of  suits.47  For  the  purpose  of 
preventing  a  multiplicity  of  suits,  a  court  of  equity  has  jurisdic- 
tion to  restrain  a  township  from  diverting  surface  water  from  a 
highway,  and  discharging  it  on  complainant's  land.48  But  where 
the  defendant  shows  a  clear  right  to  have  his  title  to  the  land  in 
dispute  passed  upon  by  a  jury,  he  will  in  the  meantime  only  be 
temporarily  enjoined.49  The  rule  as  to  repeated  trespass  upon  real 
property  has  been  applied  in  ISTew  York  to  a  series  of  acts  injurious 
to  personal  property.     Thus,  a  trade  union  has  been  enjoined 

44.  Dishong  v.  Finkbiner,  46  Fed.  plaint  nor  found  by  the  cour*;  nor 
12.  unless  there  i3  an  actionable  Injury 

45.  Smithers  v.  Fitch  82  Cal.  153,  entitling  to  substantial  relief.  Purdy 
22  Pac.  935.  See,  also,  Palmer  v.  Is-  v.  Manhattan  El.  R.  Co.,  13  N.  Y. 
rael,  13  Mont.  209,  33  Pac.  134.  Supp.  295.     And  see  Ellis  v.  Wren, 

46.  Wheelock   v.   Noonan,    108   N.  84  Ky.  254,  1  S.  W.  440. 

Y.  179,  15  N.  E.  67.     And  see  Avery  47.  Tantlinger     v.     Sullivan,     80 

v.  New  York  Central  &  H.  R.  R.  Co.,  Iowa,   218j  45   N.   W.  765;   Ladd  v. 

106  N.  Y.   142,  12  N.  E.  619;   Mur-  Osborne,  79  Iowa,  93,  44  N.  W.  235. 

dock  v.  Prospect  Park,  etc.,  R.   Co.,  48.  Slack   v.   Lawrence   Twp.    (N. 

73  N.  Y.  579.  J.  Eq.),  19  Atl.  663.     And  see  West 

An  action  to  restrain  the  fnr-  Orange   v.  Field,  37   N.  J.   Eq.   600. 

ther  use  of  an  elevated  railway  49.  Ashurst  v.  McKenzie,  92  Ala. 

in  a  street  cannot  be  maintained  on  484,  9  So.  262;  Sullivan  v.  Rabb,  86 

the    ground   of    preventing   a   multi-  Ala.  433,  5  So.  746;  Ulbricht  v.  Eu- 

plicity  of  suits  for  repetitions  of  the  faula  Water  Co.,  86  Ala.  587,  6  So. 

trespass,  where  such   ground   of   ju-  78;  Cox  v.  Douglas,  20  W.  Va.  175. 
risdiction  is  not  alleged  in  the  com- 

813 


§  524  Relating  to  Multiplicity  of  Suits. 

from  sending  circulars  to  plaintiff's  customers,  for  the  purpose  of 
preventing  them  from  dealing  with  him.60 

§  524.  Same  subject. — It  is  obvious  that  where  the  violation 
of  plaintiff's  right  is  likely  to  be  often  repeated,  or  is  of  such  a 
nature  as  to  be  continuous,  that  a  separate  remedy  at  law  for  each 
violation,  or  repeated  actions  at  law,  would  involve  the  parties  in 
interminable  litigation,  and  might  prove  as  disastrous  to  the  plain- 
tiff as  defendant.  The  legal  remedy  in  such  cases  being  inade- 
quate, injunctive  relief  will  be  afforded.  Thus,  where  a  company 
engaged  in  buying  and  crushing  cotton  seed,  was  in  the  habit  of 
sending  out  sacks  to  farmers,  to  be  filled  and  reshipped  to  it,  and 
another  company  in  the  same  business  persisted  in  collecting  and 
using  the  sacks,  in  spite  of  repeated  actions  of  replevin,  an  injunc- 
tion was  granted  to  prevent  a  further  repetition  of  the  grievance." 
In  cases  of  repeated  trespass  upon  property,  the  fact  that  the 
owner  can  have  redress  at  law  only  by  repeated  actions  for  dam- 
ages, presents  strong  grounds  in  favor  of  granting  him  injunctive 
relief  against  the  trespasser.52  Thus,  where  defendant  had  re- 
peatedly torn  down  plaintiff's  fence,  in  order  to  pass  over  his  lands, 
and  threatened  to  continue  to  do  so,  it  was  held  that  to  require 
him  to  bring  an  action  for  damages  every  time  the  injury  was 
repeated,  would  not  be  an  adequate  remedy,  and  an  injunction 

50.  Sinsheimer  v.  United  Garment  the  wrong-doer  in  regard  to  the  same 
Workers,  26  N.  Y.  Supp.  152,  per  In-  subject  matter.  The  ends  of  justice 
graham,  J.:  "The  necessity  for  the  require,  in  such  case,  that  the  whole 
interposition  of  equity  to  prevent  a  wrong  shall  be  arrested  and  concluded 
wrong  for  which  there  is  no  other  in  a  single  proceeding.  And  such  re- 
remedy,  and  to  render  unnecessary  a  lief  equity  affords,  and  thereby  ful- 
multiplicity  of  actions,  exists  just  as  fills  its  appropriate  mission  of  sup- 
much  where  the  wrong  is  to  such  per-  plying  the  deficiencies  of  legal  rem- 
sonal  property  as  is  in  its  nature  in-  edies." 

definite,  as  to  real  property."  52.  Ellis  v.  Wren,  84  Ky.  254,   1 

51.  Mills  v.  New  Orleans  Seed  Co.,  S.  W.  440;  Musselman  v.  Marquis,  1 
65  Miss.  391,  per  Arnold,  J.:  "The  Bush  (Ky.),  463.  See,  also,  Port  of 
separate  remedy  at  law  for  each  of  Mobile  v.  Louisville,  etc.,  R.  Co.,  84 
such  trespasses  would  not  be  ade-  Ala.  115,  4  So.  106;  Lyon  v.  Hunt,  11 
quate  to  relieve  the  injured  party  Ala.  295;  Smith  v.  Gardner,  12  Or. 
from  the  expense,  vexation  and  op-  221,  224.  6  Pac.  771;  Haines  v.  Hall, 
presaion   of   numerous  suits   against  17  Or.  165,  174..  20  Pac.  831. 

814 


Relating  to  Multiplicity  of  Suits.     §§  525,  526 

•was  granted  to  restrain  defendant,  in  order  to  prevent  such  re- 
Treated  actions.53 

§  525.  Same  subject;  general  rule  modified. — The  doctrine  has 
been  declared  that  while  an  injunction  may  issue  to  prevent  a 
multiplicity  of  suits,  where  there  are  several  persons  controverting 
the  same  right,  and  each  standing  on  his  own  pretensions,  yet  that 
equity  will  not  restrain  a  person  merely  because  he  is  guilty  of  a 
repetition  of  the  same  trespass,  provided  the  compensation  in  dam- 
ages is  clearly  adequate.34  This  modification  of  the  general  rule 
would  not  seem  to  be  justified,  either  by  reason  or  necessity.55 

§  52G.  As  to  trespasses  under  unconstitutional  statute. — 
Complainant  owned  a  tract  of  land  which  was  valuable  solely  for 
grazing  purposes,  and  from  which  he  derived  an  income  by  letting 
it  to  pasture.  At  the  time  he  acquired  it  the  law  of  South  Carolina 
required  all  owners  of  cattle  and  stock  to  keep  them  fenced  in, 
and  gave  the  owners  of  lands  upon  which  they  might  trespass  the 
right  to  distrain  and  impound  them.  Thereafter  the  Legislature 
passed  an  act  exempting  this  land,  with  other  tracts,  from  the 

53.  Shaffer  v.  Stull,  32  Neb.  94,  merely  the  agent  of  the  defendant 
48  N.  W.  8S2.    On  the  same  point  see       corporation." 

Owens  v.  Crossett,  105  111.  354;  Bol-  55.  In  Springport  v.  Teutonia  Sav, 

ton     v.     McShane,    267     Iowa,     207,  Bank,  75  N.  Y.  397,  402,  Rapallo,  J., 

25  N.  W.  135;  City  Council  Bluffs  v.  said:      "It  was   not   intended    to   be 

Stewart,  51  Iowa,  385,  1  N.  VV.  628.  denied   that   in   the    case   of    instru- 

54.  Hatcher  v.  Hampton,  7  Ga.  49.  ments  creating  a  prima  facie  liabil- 
The  decision  in  this  case  was  fol-  ity  and  requiring  an  affirmative  de- 
lowed  in  Roebling  v.  First  Nat.  Bank,  fense,  to  be  supported  by  extrinsic 
30  Fed.  744,  where  Jackson,  J.,  said:  proof  of  facts,  the  circumstance  that 
"  It  is  true  in  this  case  there  are  they  were  held  by  numerous  parties, 
two  defendants,  but  it  is  equally  true  who  might  bring  numerous  suits 
that  tl«e  defendant  bank  claims  under  upon  them  in  different  places,  might, 
the  defendant  Donaldson,  and  in  this  under  some  circumstances,  be  re- 
respect  the  pretensions  of  the  defend-  garded  as  a  ground  for  equitable  in- 
ants  are  the  same,  and  each  one  is  terposition,  even  though,  if  there 
not  standing  upon  his  own  or  differ-  were  but  a  single  claimant,  equitable 
ent  positions,  but  are  resting  their  de-  relief  would  be  denied,  and  the  party 
fense  on  a  common  ground;  the  de-  left  to  his  legal  defense,  nor  that 
fendant  Donaldson  is  not  a  principal  where  a  party  was  subjected  to  or 
in  interest    in    the    controversy,  but  threatened  with  numerous  vexatious 

815 


§527 


Kelating  to  Multiplicity  of  Suits. 


provisions  of  the  law,  the  effect  of  which  was  to  require  complain- 
ant either  to  fence  his  whole  tract  against  cattle,  or  to  submit  to 
have  it  trespassed  upon,  without  redress,  by  any  cattle  whose 
owners  chose  to  let  them  run  at  large.  It  was  held  that  this  act 
was  not  within  the  police  power  of  the  State,  and  violated  the 
Federal  constitution,  inasmuch  as  it  deprived  complainant  of  his 
property  without  due  process  of  law.  It  was  also  held  that  com- 
plainant was  entitled  to  an  injunction  against  certain  owners  of 
trespassing  cattle  who  had  applied  to  the  Legislature  for  the  act 
in  question,  and  who  had  paid  complainant  for  pasturage  before 
its  passage,  but  had  refused  so  to  pay  after  its  passage ;  and  that 
equity  had  jurisdiction  to  grant  the  injunction,  on  the  ground  that 
to  leave  complainant  to  his  remedies  at  law  would  involve  him  in 
a  multiplicity  of  suits.56 

§  527.  As  between  claimants  of  a  common  fund. — In  an  action 
in  equity  to  settle  in  one  suit  numerous  claims  to  a  fund  held  by 


actions,  equity  might  not,  under 
proper  circumstances,  restrain  them." 
56.  Smith  v.  Bivens,  56  Fed.  352, 
per  Simonton,  J.:  "The  Federal 
Constitution  inhibits  the  State  from 
depriving  any  person  of  life,  liberty 
or  property,  without  due  process  of 
law.  14th  Amend.,  §  1.  '  Due  pro- 
cess of  law '  has  never  received  any 
exact  definition.  Freeland  v.  Wil- 
liams, 131  U.  S.  407,  9  S.  Ct.  763,  38 
L.  Ed.  193.  Mr.  Justice  Fuller,  in 
Caldwell  v.  Texas,  137  U.  S.  697,  11 
S.  Ct.  224,  34  L.  Ed.  816,  says: 
'  Law,  in  its  regular  course  of  admin- 
istration through  courts  of  justice,  is 
due  process,  and,  when  secured  by 
the  law  of  the  State,  the  constitu- 
tional requisition  is  satisfied.'  In 
the  case  at  bar  the  complainant, 
owner  of  a  tract  of  land,  and  as  such 
owner  entitled  to  its  exclusive  use 
and  enjoyment,  is  by  an  act  of  the 
Legislature,  and  without  more,  de- 
prived of  this  exclusive  use  and  en- 


joyment. By  the  stroke  of  a  pen,  it 
is  gone.  This  seems  a  clear  illustra- 
tion of  what  is  forbidden  in  the  Con- 
stitution. The  only  remaining  in- 
quiry is,  is  this  act  of  the  general  as- 
sembly of  the  State  of  South  Caro- 
lina the  exercise  of  police  power?  If 
so,  it  is  above  the  Constitution.  The 
police  power  is  among  the  reserved 
powers  of  the  States.  New  York  v. 
Miln,  11  Pet.  102,  9  L.  Ed.  648.  It 
cannot  be  accurately  defined.  It  is 
described  as  the  power  to  prescribe 
regulations  to  promote  the  health, 
peace,  morals,  education  and  good  or- 
der of  the  people,  and  to  legislate  so 
as  to  increase  the  industries  of  the 
State,  develop  its  resources,  and  add 
to  its  wealth  and  prosperity.  Bar- 
bier  v.  Connolly,  113  U.  S.  31,  5  S. 
Ct.  357,  28  L.  Ed.  923.  Where  the 
purpose  of  the  law  is  the  adoption  of 
measures  appropriate  or  needful  for 
the  protection  of  public  morals,  the 
public  health,  and  the  public  safety, 


816 


Relating  to  Multiplicity  of  Suits 


§527 


plaintiffs,  and  thus  avoid  harassing  litigation,  an  injunction  may 
issue  restraining  the  prosecution  of  another  action  in  a  different 
court  by  one  of  the  claimants  in  respect  to  his  interests  alone,  and 
to  which  the  other  claimants  are  not  made  parties.57  So  in  New 
York  it  is  decided  that  a  court  of  equity  has  jurisdiction  to  inter- 


there  is  no  question  that  it  is  within 
the  police  power.  Mugler  v.  Kansas, 
123  U.  S.  631,  8  S.  Ct.  273,  31  L. 
Ed.  205.  But  when  the  enactment 
goes  beyond  that,  while  we  are  bound 
to  indulge  every  possible  presump- 
tion in  favor  of  the  validity  of  a 
statute  (Sinking  Fund  Cases,  99  U. 
S.  700,  25  L.  Ed.  496),  it  does  not  at 
all  follow  that  every  statute,  even  if 
it  be  enacted  ostensibly  for  these 
■ends,  is  to  be  accepted  as  a  legiti- 
mate exertion  of  police  power.  We 
are  relieved  from  doubt  as  to  this 
question  by  the  Supreme  Court  of 
South  Carolina.  In  Fort  v.  Goodwin, 
36  S.  C.  452,  15  S.  E.  723,  the  court 
discusses  the  constitutionality  of  an 
act  of  assembly  exempting  a  large 
body  of  swamp  in  Lexington  county 
from  the  operation  of  the  stock  law. 
The  court,  considering  the  question, 
hold  that  the  effect  of  the  act  is  the 
taking  of  private  property,  in  the 
sense  of  the  Constitution.  The  court 
says :  '  It  may  possibly  be  inferred 
that  it  is  for  the  benefit  of  those 
whose  business  is  to  raise  stock.  It 
manifestly  increases  the  burdens  of 
the  freeholders  within  the  inclosure, 
who  make  objection  that  their  lands 
are  to  be  turned  into  a  public  pas- 
ture, .  .  .  and  thus  required  to 
fence  any  portion  of  their  lands 
which  they  may  wish  to  cultivate. 
As  we  think,  the  Legislature  cannot 
accomplish  such  purpose.'  It  is  a  del- 
icate thing  to  declare  a  State  statute 
unconstitutional.  But  the  Supreme 
Court  of  South  Carolina,  in  the  case 


above  quoted,  and  in  Utsey  v.  Hiott, 
30  S.  C.  367,  9  S.  E.  338,  have  de- 
clared similar  acts  invalid,  upon  the 
principles  above  stated,  and  in  a  re- 
cent case,  still  in  manuscript,  Sand- 
ers v.  Venning,  38  S.  C.  502,  17  S.  E. 
134,  confirm  these  cases.  This  case 
presents  a  Federal  question,  and  is 
within  the  jurisdiction  of  this  court. 
With  regard  to  the  general  equity 
jurisdiction,  there  can  be  less  ques- 
tion. By  the  operation  of  the  act 
the  complainant  is  exposed  con- 
stantly to  trespasses  upon  hi3  land, 
and  to  the  use  and  destruction  of  hia 
property.  Were  he  limited  to  relief 
at  law  he  would  be  involved  con- 
stantly in  a  multiplicity  of  suits, 
and  harrassed  by  endless  and  unsat- 
isfactory litigation.  As  long  as  the 
act  remains  of  force  this  cannot  be 
prevented.  The  owners  of  cattle  are 
not  required  to  fence  them  in,  and 
in  despite  of  the  efforts  of  complain- 
ant, and  we  may  say  even  against  the 
wishes  of  the  cattle-owners,  these 
trespasses  will  go  on.  No  damages 
will  be  awarded.  Let  the  injunction 
issue  in  accordance  with  the  prayer 
of  the  bill." 

57.  Lawrence  v.  Manning,  9  N.  Y. 
Supp.  223,  per  Brady,  J.:  "It  ia 
true  that  the  action  of  Mrs.  Sale  ia 
the  only  one  brought  against  the 
plaintiffs,  but  as  the  parties  inter- 
ested are  numerous,  it  may  be  as- 
sumed, for  the  purpose  of  equitable 
interference,  that  the  plaintiff's  ex- 
posure to  numerous  and  harassing 
litigations,    apparently    unnecessary> 


817 


52 


§  52' 


Relating  to  Multiplicity  of  Suits. 


vene  to  prevent  a  multiplicity  of  suits  involving  conflicting  claims 
to  the  same  property  which  a  court  of  law  can  not,  but  a  court  of 
equity  can,  solve  without  working  injustice.58  So  where  a  bill  to 
set  aside  as  fraudulent  an  attachment  and  sale  by  the  confidential 
clerk  of  an  insolvent  merchant  of  the  entire  property  of  such  mer- 
chant, and  to  subject  such  property  to  the  payment  of  complain- 
ant's demand,  alleged  that  after  such  attachment,  complainants, 
to  collect  their  demand,  attached  the  same  property  seized  under 
the  alleged  fraudulent  attachment,  and  obtained  judgment;  that, 
after  their  attachment,  other  creditors  levied  on  the  same  property, 
and  filed  separate  bills  to  set  aside  the  alleged  fraudulent  attach- 
ment, and  enjoined  the  sheriff  from  paying  over  the  money  realized 
from  the  sale  under  the  alleged  fraudulent  attachment,  and  tho 
bill  made  the  merchant,  clerk,  sheriff,  and  each  of  the  attaching 
creditors  parties,  it  was  held  that  the  bill  was  not  multifarious, 
and  that  there  was  not  a  misjoinder  of  defendants.59 


calls   for   the   exercise   of   its   power. 
This  ia  an  action  in  which  full  and 
complete  justice  can  be  administered 
to  the  parties  interested  in  the  action 
of  Mr8.   Sale,  and  hence  its   mainte- 
nance  is   not   obnoxious   to    the   doc- 
trine of  Hayward  v.   Hood,   39   Him 
(N.  Y.),  590.    The  propriety  of  such 
an  action  as  this  is  distinctly  stated 
in  Erie  R.  Co.  v.  Ramsey,  45  N.  Y. 
647,  in  which  it  is  said  that  an  action 
may  be  maintained   to  restrain   pro- 
ceedings  in   another   suit,   where   the 
relief    demanded    in    the   second    suit 
cannot  be    secured    in    the    one  pre- 
viously  commenced.      In    Babcock   v. 
Arkenburgh,  22  N.  Y.  W.  Dig.  478, 
it    was     held     that     '  an     action     in 
equity    may    be    maintained  for  the 
purpose  of  settling  in  one  suit  what 
might  otherwise  require  the  prosecu- 
tion and  determination  of  a  number 
of   different   actions,   and   an   injunc- 
tion may  issue  in  such  suit  to  pre- 
vent the  continuance    or    commence- 


ment of  such  other  actions,  pending 
its  determination." 

58.   National    Park   Bank   v.   God 
dard,  131  N.  Y.  494,  30  N.  E.  566. 

See,  also,  People  v.  Simpson,  7-i 
N.  Y.  137,  holding  that  in  case* 
where  many  persons  have  claims  and 
are  prosecuting,  or  are  about  to  pros 
ecute  them  at  law,  against  one  de 
fendant  or  class  of  defendants,  or  a 
fund  liable  in  equal  degree  to  all 
those  persons  and  to  others,  a  court 
of  equity,  to  forestall  a  multiplicity 
of  actions  has  jurisdiction  of  an  ac- 
tion for  a  general  accounting  and 
adjustment  of  all  the  rights,  and  to 
restrain  separate  and  individual  ac- 
tions at  law  in  the  same  or  other 
courts,  thus  bringing  all  the  litiga- 
tion into  one  suit. 

59.  Bamberger  v.  Voorhees,  99 
Ala.  292,  13  So.  305,  per  Haralson, 
J.:  "Though  their  claims  against 
Pinkus  are  distinct,  there  is  a  con- 
tention between  them  as  to  priority 


818 


Relating  to  Multiplicity  of  Suits. 


§528 


§  528.  Same  subject. — In  Georgia,  any  superior  court  on  which 
is  devolved  the  duty  of  administering  a  particular  fund  over 
which  it  has  acquired  jurisdiction,  can  bring  before  it  all  the  claim- 
ants of  that  fund,  in  whatever  county  of  the  State  they  may  reside, 
and  jurisdiction  over  one  defendant  against  whom  substantial 
relief  is  prayed,  carries  with  it  jurisdiction  over  all  other  parties 
necessary  or  proper  to  the  administration  of  such  relief;60  and  a 
claimant  of  any  part  of  that  fund  may  be  restrained  from  bringing 
a  subsequent  action  therefor,  in  the  same  or  another  court,  and 
may  be  impleaded  in  the  original  action  in  the  superior  court.61 


out    of    a    common    fund,    and    it    is 
necessary    for    complainants'     relief, 
and  proper  for  the  relief  of  each,  that 
they  all  be  brought  before  the  court, 
that  their  competing  priorities  may 
be     rightly     and     finally     adjusted. 
Stone  v.  Insurance  Co.,  52  Ala.  589; 
Adams  v.  Jones,  68  Ala.  117;  Martin 
v.  Carter,  90    Ala.    97,    7    So.   510. 
Prom  the  developments  in  this  case 
we    venture    the    suggestion    to    the 
lower  court  of  the  propriety  of  mak- 
ing an  order  consolidating  with  this 
case    the     other     causes     pending    in 
equity   in    said    court    touching    the 
same   matters   here   involved  for   de- 
termination, and  trying  them  all  to- 
gether as  one  case.      The  settlement 
of  the  matter  in  dispute  will  thereby 
be    speedier    and    more    satisfactorily 
adjusted,    and    at    less    expense.     In 
Cartwright's  Case,  90  Ala.  405,  8  So. 
264,  we  said:     '  It  has  been  adjudged, 
and  needs  no  argument  to  justify  the 
conclusion,  that  the  summary  juris- 
diction exercised  by  a  court  of   law 
in  determining  the  priorities  of  the 
legal   liens   of   rival   attaching   credi- 
tors, whether  on  the  motion  of  the 
sheriff   or   of  the   parties   themselves 
asking  for  a  distribution  of  the  fund 
arising  from  the  sale  of  the  attached 
property,    in    no    manner    interferes 


with  the  jurisdiction  of  equity  to  ad- 
just the  rights  of  such  rival  claim- 
ants in  a  proper  case  for  cognizance 
by  a  court  of  equity."  Gusdorf  v. 
Ikelheimer,  75  Ala.  148.'" 

60.  James  v.  Sams,  90  Ga.  404,  17 
S.  E.  962. 

61.  James  v.  Sams,  90  Ga.  404,  17 
S.  E.  962.  Plaintiff,  having  loaned 
money  on  certain  bales  of  goods,  was 
notified  by  defendants  that  some  of 
the  bales  had  been  pledged  to  them, 
each  defendant  claiming  different 
bales.  Plaintiff  and  some  of  defend- 
ants agreed  that  the  bales  claimed 
by  each  of  them  should  be  sold  by 
plaintiff,  and  the  proceeds  of  specific 
bales  should  be  held  subject  to  the 
same  claims  as  the  bales  themselves. 
One  party  to  this  agreement  sued  for 
the  net  proceeds  of  the  bales 
claimed  by  it.  Plaintiff  sought  to  re- 
strain the  prosecution  of  such  suit, 
and  of  any  suit  by  any  of  defendants, 
and  praying  that  all  the  claims  be 
adjusted  in  one  suit.  Held  that,  as 
each  defendant  claimed  only  the  pro- 
ceeds of  specific  bales,  or  the  bales 
themselves,  and  no  one  claimed  the 
whole  fund,  plaintiff  was  not  enti- 
tled to  an  injunction.  New  York  Se- 
curity &  Trust  Co.  v.  Blydenstein 
(Sup.),  24  N.  Y.  Supp.  164.    In  New 


819 


§  529 


Relating  to  Multiplicity  oj    Suits. 


§  529.  As  to  victims  of  the  same  fraud. — A  court  of  equity 
intervenes  to  prevent  a  multiplicity  of  actions,  where  they  rest 
upon  some  common  right  invaded  or  some  common  injury  in- 
flicted, as,  for  example,  where  they  are  brought  by  the  several 
victims  of  the  same  general  fraudulent  scheme,  though  they  may 
have  been  affected  by  it  in  different  degrees,  and  without  any 
joint  contract  or  joint  act  between  them.6"  And  where  a  county 
treasurer  had  created  a  false  debt  against  his  county  by  an  over- 
issue of  notes,  and  thirty-one  of  the  holders  had  brought  separate 
suits  on  their  notes,  and  the  county,  though  willing  to  pay  what 
it  justly  owed,  was  unable  to  ascertain  who  were  the  rightful 
owners  of  the  debt,  it  was  held  that  the  county  was  entitled  to 
enjoin  the  separate  suits,  and  to  have  the  rights  of  the  holders  of 
the  notes  and  the  county's  liability  determined  in  one  action,  for 


York  Security  &  Trust  Co.  v.  Blyden- 
gtcin,  70  Hun,  216,  24  N.  Y.  Supp. 
164,  the  trust  company  sought  to  re- 
strain an  action  by  Blydenstein,  and 
other  actions  which  might  be 
brought  by  the  several  claimants  of 
the  different  bales  of  burlaps  held  by 
the  company,  on  the  ground  that  each 
claimant  claimed  an  interest  in  the 
fund  arising  from  the  sale  of  the  200 
bales,  and  that  consequently  the 
rights  therein  could  not  be  deter- 
mined in  separate  actions;  but  as  the 
facts  showed  that  the  action  sought 
to  be  restrained  was  upon  an  inde- 
pendent cause  of  action  as  to  the  dis- 
tinct, specific  bales  claimed  by  Bly- 
denstein, in  which  the  other  claim- 
ants had  no  interest,  and  that  there 
was  no  confusion  of  goods  or  inter- 
ests, unless  caused  by  the  trust  com- 
pany itself,  the  agreement  between 
it  and  the  claimants  not  having  been 
joint,  it  was  held  that  the  injunction, 
so  far  as  it  restrained  the  Blyden- 
stein action,  should  be  dissolved. 

62,   National   Park    Bank  v.   God- 
dard,  131  N.  Y.   494,  30  N.  E.  566. 


In  this  case  the  plaintiff  bank  waa 
induced  by  false  representations  of  a 
certain  firm  to  make  it  a  large  loan, 
and  many  others  were  induced,  by 
similar  representations,  to  sell  the 
firm  goods  on  credit  to  make  up  into 
clothing.  On  discovery  of  the  fraud 
the  bank  attached  the  whole  stock  of 
the  firm,  and  the  vendors  brought  re- 
plevin suits  against  the  sheriff,  to  re- 
cover the  specific  property  respec- 
tively sold  by  them  to  the  firm.  The 
bank  then  brought  an  action  to  en- 
join the  prosecution  of  the  fifty  or 
more  replevin  suits  against  the 
sheriff,  and  for  the  appointment  of  a 
receiver  of  the  property  of  the  firm 
in  litigation,  and  for  an  adjudication 
of  the  various  claims  of  the  bank  and 
the  other  creditors,  and  it  was  held 
that  a  court  of  equity  had  jurisdic- 
tion to  intervene  to  prevent  a  multi- 
plicity of  suits,  involving  conflicting 
claims  to  the  same  property,  which  a 
court  of  law  could  not,  but  which 
equity  could  solve  without  working 
injustice,  and  that  the  bank,  though 
as  attaching  creditor  it  had  no  legal 


820 


Relating  to  Multiplicity  of  Suits. 


§530 


the  purpose  of  preventing  multiplicity  of  suits,  and  to  protect  the 
county  against  the  hazard  of  a  double  recovery.63 

§  530.  In  case  of  bonds  fraudulently  guaranteed A  railroad 

company,  whose  guaranty  appears  indorsed  upon  several  hundred 
bonds  issued  by  another  company,  having  been  placed  there  il- 
legally and  fraudulently,  may  maintain  a  bill  in  equity  against 
the  holders  thereof  to  cancel  the  guaranty,  on  the  ground  of  pre- 
venting a  multiplicity  of  suits,  although  it  might  have  a  good 
defense  at  law  to  each  of  the  bonds.  And  in  such  case  the  company 
may  enjoin  the  holders  from  transferring,  encumbering  or  remov- 
ing from  within  the  jurisdiction  of  the  court  of  any  of  the  bonds 
thus  fraudulently  guaranteed.64 


title  to  the  property  attached,  yet 
was  the  real  party  interested,  and  so 
was  entitled  to  bring  the  action  and 
turn  the  clothing  into  money,  to  be 
justly  distributed  among  the  claim- 
ants. 

6,3.  Saratoga  County  Supervisors 
v.  Deyoe,  77  N.  Y.  219,  225,  per  An- 
drews, J. :  "  The  county  is  ready  and 
willing  to  pay  what  it  owes,  as  soon 
as  its  creditors  are  ascertained.  It 
cannot  safely  pay  without  litigation. 
In  stands  in  the  position  of  holding 
a  fund,  equal  to  its  admitted  debt, 
which  is  claimed  by  many  persons, 
and  it  asks  by  this  action  that  the 
court  will  interfere  to  prevent  mul- 
tiplicity of  suits,  and  to  determine 
the  rights  of  all  the  claimants  in  a 
single  action,  the  general  question 
in  each  will  be  the  same  as  to  each 
defendant,  viz.:  whether  the  particu- 
lar claim  represents  any  part  of  the 
admitted  debt.  The  prevention  of  a 
multiplicity  of  suits,  as  said  by 
Chancellor  Kent,  in  Brinkerhoff  v. 
Brown,  6  Johns.  Ch.  151,  is  a  very 
favorite  object  with  a  court  of 
equity,  and  the  number  of  parties 
and   the   multiplicity    of    actual   or 


threatened  suits  will,  as  stated  by 
Comstock,  J.,  in  the  case  of  New 
York,  etc.,  R.  Co.  v.  Schuyler,  17  N. 
Y.  608,  sometimes  justify  a  resort  to 
a  court  of  equity,  when  the  subject 
is  not  at  all  of  an  equitable  charac- 
ter, and  there  is  no  other  element  of 
equity  jurisdiction.  It  is  upon  this 
ground  that  bills  of  peace  are  enter- 
tained, viz.:  to  quiet  unnecessary 
litigation.  Story,  Eq.  Jur.,  §  854; 
Milford's  Eq.  PI.  145.  The  mainte- 
nance of  this  action  will  subserve 
this  purpose.  It  will  also  protect 
the  plaintiff  against  the  hazard  of  a 
double  recovery,  which  is  the  ground 
upon  which  bills  of  interpleader  are 
sustained.  Badeau  v.  Rogers,  2 
Paige,  209;  Bedell  v.  Hoffman,  2 
Paige,  199.  ...  It  may  not  be  a 
case  of  interpleader  strictly,  or 
which  meets  all  the  definitions  of  a 
bill  of  peace,  but  it  combines,  to  a 
greater  or  less  extent,  elements  of 
jurisdiction  in  each  of  these  cases, 
and  the  action  may  be  sustained,  we 
think,  without  a  violation  of  prin- 
ciple." 

64.     Louisville,     etc.,     R.     Co.     v. 
Ohio,  etc.,  Contract  Co.,  57  Fed.  42, 


821 


§531 


Relating  to  Multiplicity  of  Suits. 


§  531.  Cases  of  void  ordinance  and  tax. — A  court  of  equity 
may,  in  order  to  prevent  a  multiplicity  of  actions,  enjoin  the 


per  Lurton,  J.:  "  There  has  been 
much  conflict  of  authority  as  to  the 
circumstances  which  will  justify  a 
court  of  equity  in  taking  jurisdic- 
tion to  prevent  a  multiplicity  of 
suits;  but  an  examination  of  numer- 
ous authorities  brings  me  to  the  con- 
clusion that  where  a  complainant 
may  be  subjected  to  a  multitude  of 
separate  suits  by  separate  claimants, 
and  the  judgment  in  one  case  would 
not  be  conclusive  in  others,  a  case 
arises  for  equitable  jurisdiction,  if 
the  defendants  have  a  community  of 
interest  in  the  questions  at  issue,  and 
in  the  kind  of  relief  sought,  by  rea- 
son of  the  common  origin  of  their 
several  claims.  This  conclusion  has 
the  support  of  Mr.  Pomeroy,  who, 
after  an  elaborate  consideration  of 
this  question,  says:  'Under  the 
greatest  diversity  of  circumstances, 
and  the  greatest  variety  of  claims 
arising  from  unauthorized  public 
acts,  private  tortious  acts,  invasion 
of  property  rights,  violation  of  con- 
tract obligations,  and  notwithstand- 
ing the  denials  of  some  American 
courts,  the  weight  of  authority  is 
simply  overwhelming  that  the  juris- 
diction may  and  should  be  exercised 
either  on  behalf  of  a  numerous  body 
of  separate  claimants  against  a  sin- 
gle party,  or  on  behalf  of  a  single 
party  against  such  a  numerous  body, 
although  there  is  no  common  title, 
nor  community  of  right,  nor  of  inter- 
est in  the  subject  matter,  but  be- 
cause there  is  merely  a  community 
of  interest  among  them  in  the  ques- 
tions of  law  and  fact  involved  in  the 
general  controversy,  or  in  the  kind 
and  form  of  relief  demanded  and  ob- 
tained by  or  against  each  individual 


member  of  the  numerous  body.  In  a 
majority  of  the  decided  cases  this 
community  of  interest  in  the  ques- 
tions at  issue,  in  the  nature  and  kind 
of  relief  sought,  has  originated  from 
the  fact  that  the  separate  claims  of 
all  the  individuals  composing  the 
body  arise  by  means  of  the  same  un- 
authorized, unlawful  and  illegal  act 
or  proceeding.  Even  this  external 
feature  of  unity,  however,  does  not 
always  exist,  and  is  not  deemed  es- 
sential. Courts  of  the  highest  stand- 
ing and  equity  have  repeatedly  ap- 
peared and  exercised  this  jurisdic- 
tion where  individual  claims  were 
not  only  legally  separate,  but  were 
separate  in  term,  and  arose  from  an 
entirely  separate  and  distinct  trans- 
action, simply  because  there  was  a 
community  of  interest  among  all  the 
claims  at  issue,  and  in  the  remedy.' 
Pom.  Eq.  Jur.,  §§  222,  911,  et  scq. 
The  case  of  Railway  Co.  v.  Schuyler, 
17  N.  Y.  592,  is  an  interesting  and 
instructive  case.  In  that  case  it  ap- 
peared that  spurious  certificates  of 
stock  in  a  railroad  corporation  had 
been  issued  by  an  officer  having  ap- 
parent authority  to  do  so,  and  un- 
distinguishable  on  their  faces  from 
certificates  of  genuine  stock,  and 
were  outstanding  in  the  hands  of  nu- 
merous holders.  The  holders  of  such 
spurious  certificates  were  made  par- 
ties defendant  to  the  bill  filed  by  the 
railroad  company.  After  an  elabor- 
ate consideration  of  the  question,  as 
to  whether  or  not  the  bill  would  lie, 
that  court  maintained  its  jurisdic- 
tion, and  held  that  the  false  certifi- 
cates having  a  common  origin  and 
common  ground  of  invalidity,  though 
the  holders  became   such  under   dif- 


S22 


Relating  to  Multiplicity  of  Suits. 


§531 


prosecution  of  actions  to  enforce  a  void  city  ordinance.65  And  in 
such  a  case  the  court  has  jurisdiction,  at  the  suit  of  any  person 
injuriously  affected  by  the  void  ordinance.66  And  upon  the  ground 
of  the  inherent  jurisdiction  of  equity  to  prevent  vexatious  litiga- 
tion, the  collection  of  an  entire  school  district  tax,  assessed  with- 
out authority  of  law,  may  be  perpetually  enjoined,  on  a  bill 
brought  by  all  of  the  taxpayers  jointly,  or  by  any  member  of  them, 
on  behalf  of  themselves  and  all  the  others.67    A  bill  which  charges 


ferent  circumstances  and  convey- 
ances, and  claimed  different  rights, 
yet  they  were  all  properly  joined  as 
defendants,  and  the  bill  maintained 
as  a  bill  to  prevent  a  multiplicity  of 
suits.  In  Supervisors  v.  Deyoe,  77 
N.  Y.  219,  we  find  a  similar  case. 
The  treasurer  of  Saratoga  county, 
under  an  authority  to  issue  notes  for 
money  advanced  to  the  county  to  the 
amount  of  some  $20,000,  issued  73 
notes,  to  the  amount  of  $138,000. 
These  notes  were  held  by  53  persons, 
many  of  whom  had  bought  separate 
suits  upon  their  notes.  The  supervis- 
ors filed  a  bill  in  equity  against  all 
the  holders  of  said  notes,  including 
those  who  had  brought  suits  at  law. 
Upon  demurrer  to  the  bill  it  was  held 
that  upon  the  facts  a  case  was  made, 
entitling  the  plaintiff,  upon  equit- 
able principles,  to  implead  the  hold- 
«rs  of  the  notes,  for  the  purpose  of 
having  their  respective  rights,  and 
the  liability  of  the  county,  deter- 
mined in  one  action;  that  the  claims 
were  of  the  same  general  character; 
and  that  the  action  was  maintainable 
for  the  purpose  of  preventing  a  mul- 
tiplicity of  suits,  and  to  protect 
plaintiff  against  the  hazard  of  a  dou- 
ble recovery.  The  case  of  Water- 
works v.  Yeomans,  L.  R.  2  Ch.  App. 
11,  was  this:  A  very  large  number 
of  persons  held  separate  claims 
against     the     waterworks    company. 


The  claims  were  for  damages  origi- 
nating in  an  inundation  resulting 
from  the  breaking  of  a  reservoir. 
Under  a  special  act  commissioners 
were  appointed  to  inquire  into  and 
assess  these  damages,  and  issue  cer- 
tificates upon  the  several  claims. 
The  waterworks  claimed  that  the 
power  of  the  commissioners  had  ex- 
pired, and  that  a  large  number  of 
these  certificates  were  in  consequence 
invalid.  A  bill  by  the  company 
against  a  few,  as  representing  the 
whole  number,  was  filed,  and  a  de- 
murrer sustained.  The  court  held 
that  as  the  rights  of  all  depended 
upon  the  same  question,  and  that  al- 
though the  defense  could  be  made  at 
law,  it  was  '  a  very  fit  case,  by  anal- 
ogy, at  least,  to  a  bill  of  peace,  for* 
a  court  of  equity  to  interpose,  and 
prevent  the  unnecessary  expense  and 
litigation  which  would  be  thus  occa- 
sioned, and  to  decide  once  for  all  the 
validity  or  invalidity  of  the  certifi- 
cates upon  which  the  claims  of  all 
persons  depend.'  See,  also,  Black  t. 
Shreeve,  7  N.  J.  Eq.  440." 

65.  Newport,  City  of,  v.  Newport 
&  C.  Bridge  Co.,  90  Ky.  193,  13  S. 
W.  720;  Davis  v.  Fasig,  128  IndU 
271,   27   N.  E.  726. 

66.  Mayor,  etc.,  Radecke,  49  Md. 
217;  Page's  Case,  34  Md.  564. 

67.  Carlton  v.  Newman,  77  Md. 
408.       The     remedy     by     injunction 


823 


§532 


Relating  to  Multiplicity  of  Suits. 


that  the  collection  of  an  illegal  tax  would  involve  the  plaintiff  in 
a  multiplicity  of  suits  as  to  the  title  of  lots  being  laid  out  and 
sold,  and  prevent  their  sale,  entitles  him  to  injunctive  relief  against 
the  collection  of  the  tax.68  To  prevent  vexatious  litigation,  na- 
tional banks  may  maintain  suits  in  equity  to  restrain  the  collection 
of  taxes;  on  the  stock  of  their  shareholders,  where  the  bank  has  to 
pay  the  tax  and  collect  it  from  the  shareholder.69  And  to  avoid 
multiplicity  of  suits,  aggrieved  taxpayers,  though  not  jointly  in- 
terested, will  be  allowed  to  join  in  one  suit  to  enjoin  the  enforce- 
ment of  an  illegal  tax.70 

§  532.  Same  subject. — Where  plaintiff  has  been  arrested  fifteen 
times  under  a  city  ordinance  for  occupying  a  highway,  to  which 
he  claims  title,  and  fined  in  each  case  an  amount  too  small  to  allow 
an  appeal,  an  injunction  will  lie  to  prevent  any  further  prosecu- 
tions until  the  question  of  title  is  determined.71     And  where  an 


against  the  collection  of  invalid  tax, 
was  held  available  where,  although 
the  pleadings  did  not  make  out  a  case 
for  Buch  relief,  the  parties  stipulated 
certain  facts  going  to  show  that  a 
multiplicity  of  suits  would  be 
avoided  by  jurisdiction  being  taken 
in  equity.  Philadelphia,  W.  &  B.  R. 
Co.  v.  Neary  (Del.),  8  Atl.  363. 

68.  Union  Pac.  R.  Co.  v.  Chey- 
enne, 113  U.  S.  516,  5  S.  Ct.  601,  28 
L.  Ed.    1098. 

69.  Cummings  v.  National  Bank, 
101  U.  S.  153,  156,  25  L.  Ed.  903, 
per  Miller,  J. :  "  In  paying  the 
money,  the  bank  is  acting  in  a  fidu- 
ciary capacity  as  the  agent  of  the 
stockholders.  If  it  pays  an  unlawful 
tax  assessed  against  its  stockhold- 
ers, they  may  resist  the  right  of  the 
bank  to  collect  it  from  them.  The 
bank,  as  a  corporation,  is  not  liable 
for  the  tax,  and  occupies  the  position 
of  stakeholder,  on  whom  the  cost 
and  trouble  of  the  litigation  should 
not  fall.     If  it  pays,  it  may  be  sub- 


jected to  a  separate  suit  by  each 
shareholder.  If  it  refuses,  it  must 
either  withhold  dividends,  and  sub- 
ject itself  to  litigation  for  doing  so, 
or  refuse  to  obey  the  laws  and  sub- 
ject itself  to  suit  by  the  State.  It 
holds  a  trust  relation  which  author- 
izes a  court  of  equity  to  see  that  it 
is  protected  in  the  exercise  of  duties 
appertaining  to  it.  To  prevent  mul- 
tiplicity of  suits  equity  may  inter- 
fere." 

70.  Clee  v.  Sanders,  74  Mich.  692, 
42  N.  W.  154. 

71.  Shinkle  v.  City  of  Covington, 
83  Ky.  420,  per  Pryor,  J. :  "  His  or- 
dinary remedy  against  the  city  for 
the  wrong  complained  of  would  not 
stay  proceedings  upon  the  multiplied 
warrants  against  him,  and  in  such  a 
case  we  see  no  reason  why  a  court  of 
equity  should  not  entertain  jurisdic- 
tion and  stay  all  proceedings  on  the 
warrants  until  the  matters  alleged  in 
the  petition  are  determined.  .  .  . 
The  real  ground  for  going  into  equity 


824 


Eelatikg  to  Multiplicity  of  Suits. 


533 


ordinance  prohibiting  a  gas  company  from  carrying  on  its  business 
except  on  certain  conditions  is  void  as  to  such  company,  its  at- 
tempted enforcement  by  repeated  prosecutions  of  the  company's 
employees  will  be  enjoined.72 

§  533.  Where  several  lot  owners  are  illegally  assessed. — An 

averment  in  a  petition  by  several  lot  owners,  to  enjoin  the  collec- 
tion of  benefit  assessments  on  their  respective  lots  made  in  a  street 
opening  case,  that  "  plaintiffs  were  not  parties  to  the  condemnation 
proceedings,  had  no  notice  thereof,  and  were  therefore  unable  to 
prevent  or  protest  against  the  wrongful  acts  committed  in  said 
proceedings"  in  the  absence  of  any  pleading  of  the  ordinance 
reflating  the  giving  of  notice,  does  not  show  that  the  cause  of 
action  is  the  same  as  to  all  the  plaintiffs,  or  that  the  city  failed  to 
give  the  notice  required  by  the  ordinance,  and  that  the  action  is 
properly  brought  to  avoid  a  multiplicity  of  suits.73 


is  the  illegal  use  made  of  this  ordi- 
nance against  a  party  who  is  with- 
out remedy  at  law  and  who  is  com- 
pelled to  surrender  possession  of  his 
property  in  order  to  avoid  the  im- 
position of  the  penalties."  See,  also, 
Louisville  v.  Gray,  1  Litt.  (Ky.) 
147.  On  the  point  that  the  aid  of 
a  court  of  equity  cannot  be  invoked 
so  as  to  interfere  with  proceedings 
of  subordinate  tribunals,  unless  to 
prevent  irreparable  injury  or  a  mul- 
tiplicity of  suits,  Pryor,  J.,  cited 
Ewing  v.  St.  Louis,  5  Wall.  413; 
Brooklyn  v.  Meserole.  26  Wend.  132. 

72.  City  of  Rushville  v.  Rushville 
Natural  Gas  Co.,  132  Ind.  575,  28  N. 
E.  853. 

73.  Michael  v.  City  of  St.  Louis, 
112  Mo.  610,  20  S.  W.  666,  Brace,  J., 
epeaking  for  the  majority  of  the 
court  said:  "Each  of  the  plaintiffs, 
if  the  fact  of  the  want  of  notice  to 
him  be  true,  has  this  defense  com- 
plete and  independent  for  himself.  It 
is  neither  strengthened  nor  weakened 


by  that  of  either  or  all  of  his  other 
co-plaintiffs  or  any  number  of  them, 
and  they  have  no  interest  in  common 
to  be  protected  by  it;  each  can  make 
it  for  himself  and  neither  can  make 
it  for  the  other;  nor  does  it  matter 
to  any  of  them  whether  another 
makes  it  or  not.  One  suit  will  decide 
it  for  each  of  them;  consequently 
there  is  no  more  ground  for  the  in- 
terposition of  a  court  of  equity  to 
protect  any  of  them  on  the  ground 
that  either  or  any  of  them  may  other- 
wise be  harassed  by  a  multiplicity  of 
suits  than  for  the  purpose  of  pre- 
venting a  cloud  by  way  of  incum- 
brance upon  the  title  to  their  prop- 
erty, which  upon  their  own  theory 
would  long  since  have  been  dissipated 
in  the  ordinary  course  of  proceeding 
under  the  law,  had  they  not  inter- 
posed to  restrain  it."  Sherwood,  C. 
J.,  dissenting  said:  "This  common 
right  to  ask  injunctive  relief  is  not 
based  at  all  upon  the  various  methods 
by  which  the  parties  plaintiff  might 


825 


§534 


Relating  to  Multiplicity  of  Suits. 


§  534.  Protection  of  franchises.— Franchises  granted  to  indi- 
viduals or  corporations  are  often  protected  from  violation  by 
courts  of  equity  in  order  to  prevent  multiplicity  of  suits.74  Thus 
an  injunction  was  granted  to  protect  the  exclusive  right  within 
certain  limits  of  erecting  a  bridge  across  the  Connecticut  river 
and  of  taking  tolls  to  reimburse  the  cost,  such  a  thing  being  in 
the  nature  of  a  contract  and  not  a  monopoly,  in  the  odious  sense 
of  the  term.75  When  railroad  commissioners  have  advertised  in 
State  papers  that  a  schedule  of  rates  as  prepared  by  them  will  be 
put  in  force  on  a  day  named,  a  railroad  company  may,  on  a  suf- 
ficient showing,  have  an  injunction  to  restrain  the  enforcement  of 
the  schedule  on  the  ground  of  preventing  a  multiplicity  of  suits 


have  been  brought  into  court,  but 
upon  the  common  right  which  each 
one  possessed  to  be  relieved  against 
unjust  taxation;  taxation  without 
notice  which  cast  a  cloud  on  each  of 
their  respective  titles,  that  is  the  only 
basis  and  sole  foundation  of  their 
right  to  come  into  a  court  of  equity, 
and  does  not  rest  upon  the  fact  that 
they  were  required  to  be  notified  by 
different  methods,  which  methods 
various  howsoever  were  never  pur- 
sued. ...  In  conclusion  then  I 
hold  that  the  petition  is  well  enough 
on  the  ground  that  it  seeks  relief  to 
prevent  the  invasion  of  a  right  com- 
mon to  all  the  plaintiffs;  that  it 
seeks  to  avoid  a  multiplicity  of  suits, 
and  that  its  allegations  however  gen- 
eral and  indefinite  in  their  nature 
are  good  against  the  demurrer  filed, 
and  so  I  am  constrained  to  dissent." 
74.  In  Croton  Turnpike  Co.  v. 
Ryder,  1  Johns.  Ch.  (N.  Y.)  611, 
Chancellor  Kent  held  it  to  be  settled 
that  injunction  was  the  proper  rem- 
edy to  secure  to  a  party  the  enjoy- 
ment of  a  statutory  privilege,  for 
without  it  he  would  be  exposed  to 
constant  and  ruinous  litigation.  Hia 
decision   was   followed    in    Tyack   v. 


Bruraley,  1  Barb.  Ch.  (N.  Y.)  519. 
533.  See,  also,  Livingston  v.  Vau 
Ingen,  9  Johns.  (N.  Y.)  507.  In 
Boston,  etc.,  R.  Co.  v.  Salem,  etc.,  R. 
Co.,  2  liray  (Mass.),  1,  27,  where  the 
question  at  issue  was  the  protection 
of  a  railroad  franchise  by  injunction, 
Shaw,  C.  J.,  said:  "If  the  right  ex- 
ists and  has  been  invaded,  the  appro- 
priate and  specific  remedy  that  which 
Bhall  prevent  the  continuing  invasion 
is  by  injunction,  and  this  can  be  af- 
forded only  in  equity.  On  these 
grounds,  we  are  of  opinion  that  such 
a  case  is  within  the  ordinary  scope 
of  equity  jurisdiction,  and  that  the 
jurisdiction  is  peculiarly  appropri- 
ate to  such  a  case.  An  injunction  will 
generally  be  granted  to  secure  the 
enjoyment  of  a  statute  privilege  of 
which  the  party  is  in  actual  pos- 
session unless  the  right  is  doubtful." 
Newburgh  Turnpike  v.  Miller,  5 
Johns.   Ch.    (N.   Y.)    101. 

75.  Enfield  Bridge  Co.  v.  Hartford, 
etc.,  R.  Co.,  17  Conn.  40.  per  Will- 
iams, C.  J. :  "  It  has  been  adjudged 
by  this  court  that  when  the  right  was 
not  doubtfull  an  injunction  would  al- 
ways be  granted  to  secure  the  enjoy- 
ment of  a  statute  privilege  of  which 


826 


Eelating  to  Multiplicity  of  Suits.  §  535 

for  damages,  which  would  be  likely  to  be  brought  against  the 
company  for  charging  in  excess  of  those  rates.76 

§  535.  Patent  infringement  suits. — In  a  suit  for  infringement 
of  a  patent,  a  court  of  equity  has  the  power,  upon  defendant's  peti- 
tion, to  restrain  complainant  from  bringing  further  suits  against 
the  purchasers  or  users  of  the  patented  article,  upon  a  proper  show- 
ing that  such  suits  are  vexatious  and  oppressive.77  But  a  recovery 
against  the  maker  of  an  infringing  article  or  apparatus,  is  no  bar 
to  an  action  against  the  user  of  it,  for  damages  resulting  from  his 
use,  and  for  injunction  against  further  use.78  And  a  notice  to  users 
that  the  apparatus  they  are  using  is  claimed  to  be  an  infringement, 
and  that  the  patentee  intends  to  defend  his  patent  rights,  will  not  be 
restrained  by  the  courts,  since  should  he  fail  to  give  such  notice 
during  his  litigation  with  the  infringing  manufacturer,  the  user 
may  insist  when  he  is  sued  that  the  patentee's  laches  should  pre- 
vent his  recovery.79  And  in  modification  of  the  rule  before  laid 
down,  it  is  now  held  that  a  patentee  who,  without  unreasonable 
delay,  begins  suit  against  a  manufacturer  for  infringement,  will 
not  be  enjoined,  in  the  absence  of  any  showing  of  intention  not  to 
press  the  suit,  from  notifying  the  manufacturer's  customers  of 
his  claim  of  infringement,  and  that  he  will  enforce  his  rights 

the  party  is  in  the  actual  possession;  Boston  Cash,  etc.,   Co.,   41   Fed.   51, 

and  it  was  added  that  to  restrain  a  per  Cott,  J.:     "I  think  an  examina- 

multiplicity  of  suits  and  prevent  im.  tion  of  the  affidavits  that  the  numer- 

mediate  damage  to  a  statute   privi-  ous  suits  brought  by  the   complain- 

Jege  is  the  exercise  of  a  sound  dis-  ants  against  the  customers  of  the  de- 

cretion."    Enfield  Bridge  Co.  v.  Conn.  fendants,    are    vexatious    and    that, 

Riv.  Co.,  7  Conn.  50;  Hartford  Bridge  therefore,    an    injunction    should    be 

Co.  v.  East  Hartford..   16  Conn.   149.  granted  as  prayed  for."    And  see,  on 

And  see  Port  of  Mobile  v.  Louisville  the  same  point,  Ide  v.  Engine  Co.,  31 

&  N.  R.  Co.,  84  Ala.  115,  4  So.  106.  Fed.     901,     where     threatened     suits 

See,  also,  Allen  v.  Donnelly,  5  Ir.  Ch.  against     customers     were     enjoined; 

239;  Ashworth  v.  Browne,  10  Ir.  Ch.  also  Allis  v.   Stowell,    16   Fed.   783; 

421;    Letton  v.  Gooden,  L.  R.  2  Eq.  Birdsell     v.     Manufacturing    Co.,     1 

123.  Hughes,  64. 

76.  Chicago,  etc.,   R.   Co.   v.   Dey,  78.  Birdsell  v.  Shaliol,  112  U.  S. 
35  Fed.  866.  485,  5  S.  Ct.  224. 

77.  National  Cash  Register  Co.  v.  79.  Edison   Electric  Light  Co.  v. 

827 


§530 


Relating  to  Multiplicity  of  Suits. 


against  them,  and  that  if  necessary  he  may  sue  each  and  all  of 
them  separately,  whatever  their  number  without  thereby  institut- 
ing such  a  multiplicity  of  actions  as  equity  will  enjoin.80 

§  536.  Where  carrier  collects  insurance  for  numerous  owners. 
— Where  a  carrier  secures  insurance  on  goods  belonging  to 
numerous  owners,  for  their  benefit  as  well  as  its  own,  and,  the 
goods  being  destroyed,  collects  the  entire  amount  of  the  insurance, 
equity  has  jurisdiction,  on  the  ground  of  avoiding  a  multiplicity 
of  suits  and  the  difficulty  of  making  a  proper  apportionment,  of  a 
suit  brought  by  some  of  the  owners,  for  the  benefit  of  all  who 
might  join  with  them,  to  recover  their  alleged  proportional  in- 
terests therein.81 


Equitable  L.  Ins.  Co.,  55  Fed.  478; 
Kelley  v.  Manufacturing  Co.,  44  Fed. 
19;  Tuttle  v.  Matthews,  28  Fed.  98. 

80.  New  York  Filter  Co.  v. 
Schwarzwalder,  58   Fed.  577. 

81.  Pennefeather  v.  Baltimore 
Steam-Packet  Co.,  58  Fed.  481..  per 
Morris,  J.:  "As  to  the  objection 
urged  that  this  is  not  a  case  of  equity 
cognizance,  it  is  true  that  each  com- 
plainant, if  he  has  a  good  cause  of  ac» 
tion,  might  maintain  an  action  at  law 
to  recover  the  proportion  of  the  fund 
collected  by  the  defendant  in  respect 
to  each  complainant's  goods;  but  it 
seems  quite  clear  that  the  remedy  at 
law  is  not  adequate  and  complete, 
and  would  require  a  multiplicity  of 
suits  with  regard  to  one  subject  mat- 
ted. If  the  complainants  can  re- 
cover, there  will  be  serious  difficulties, 
in  a  trial  at  law,  to  determine  what 
amount  is  to  be  distributed,  and  what 
proportion  each  is  entitled  to.  It 
would  depend  on  what  the  loss  of 
each  of  the  numerous  shippers  might 
prove,  and  the  proportion  of  their 
losses  to  the  whole  fund  proved  to  be 
remaining  in  defendant's  hands  for 
distribution.     If  their  questions  were 


settled  by  different  juries  in  separate 
trials  for  each  claimant,  there  would 
possibly  be  different  results,  with  in- 
juries to  either  plaintiff  or  defendant, 
and  great  expense.  Oelrichs  v.  Spain, 
15  Wall.  211.  In  Snowden  v.  Gen- 
eral Dispensary,  60  Md.  85,  a  bill  in 
equity  was  filed  by  one  dispensary  on 
behalf  of  all  entitled  to  share  in  cer- 
tain fines  collected  by  the  sheriff  and 
was  sustained.  The  court  said: 
'  Then,  again,  at  law,  each  dispensary 
would  be  obliged  to  sue  separately; 
and  in  the  one  case  the  proof  may 
show  the  defendant  has  or  ought  to 
have  collected,  in  the  aggregate,  a 
certain  sum;  and,  in  another,  that  he 
has  collected  a  greater  or  less 
amount.  Besides,  in  one  case  it  may 
appear  that  a  certain  number  of  dis- 
pensaries are  entitled  to  the  benefit 
of  the  act,  and  in  another,  a  greater 
or  less  number  are  entitled.  The  re- 
sult would  be  a  multiplicity  of  ac- 
tions, and  expensive  and  vexations  lit- 
igations, with  different  judgments, 
each  varying  in  amounts;  and  this 
too,  in  the  face  of  the  Act  of  1833, 
which  provided  that  the  fund  shall  be 
distributed    equally    among    the    sev- 


828 


Relating  to  Multiplicity  of  Suits.  §  537 

§  537.  Enjoining  pending  actions  in  same  and  other  courts. — 
In  order  to  prevent  a  multiplicity  of  suits,  a  court  of  equity  has 
power,  by  injunction,  to  restrain  another  equitable  action  in  the 
same  court,  and  in  New  York  it  has  been  held  that  the  Supremo 
Court,  in  one  judicial  district,  may  restrain  another  action  pend- 
ing in  that  court  in  another  district.82  And  where,  after  the  com- 
mencement of  an  action  in  the  superior  court  of  New  York  city, 
to  recover  the  amount  of  interest  coupons  upon  bonds  received  by 
a  trust  mortgage,  the  trustee  commenced  an  action  in  the  Supremo 
Court  to  foreclose  the  mortgage  for  the  benefit  of  all  the  bond- 
holders who,  including  the  plaintiff  in  the  former  action,  were 
made  parties;  it  was  held  that  the  Supreme  Court,  in  order  to 
prevent  unnecessary  litigation  and  expense,  had  the  power  to  stay 
proceedings  in  the  superior  court  until  the  determination  of  tho 
foreclosure  suit.83  Again,  where  plaintiff  sued  to  compel  the  deter- 
mination of  hostile  claims  to  ten  pieces  of  real  property,  nine  of 
which  were  in  New  York  City,  and  one  in  Westchester  county,  and 
defendants  brought  ten  actions  of  ejectment  against  plaintiff  to 
establish  their  title  to  the  property,  it  was  held,  that  the  plaintiff 
in  the  first  suit  was  entitled  to  an  injunction  restraining  defend- 
ants from  proceeding  with  nine  of  their  ejectment  suits  upon  tho 
ground  of  multiplicity  of  suits,  and  that  there  was  no  inconsistency 
in  allowing  the  other  action  to  proceed  to  trial.84    And  where  the 

eral  dispensaries  entitled.     By  a  bill  tied  in  a  single  suit  brought  by  all 

in  equity,  with  a  prayer  for  discovery,  these  persons  uniting  as  co-plaintiffs ; 

all    this    may    be    avoided,    and   the  or  one  of  the   persons   suing  on  be- 

rights  of  all  concerned  may  be  finally  half  of   the   others,   or  even  by  one 

settled  in  one  litigation.'     The  pres-  person  suing  for  himself  alone.'     O9- 

ent   case   belongs   to   the   class   men-  borne  v.  Railroad  Co.,  43  Fed.  824; 

tioned  in  1  Pom.  Eq.  Jur.,  §  245,  of  Emigration  Co.  v.  Guinault,  37  Fed. 

which  it  is  said  equity  will  take  cog-  523." 

nizance  to  prevent  a  multiplicity  of  80.  Erie  R.  Co.  v.  Ramsey,  45  N. 

suits:     'Where  a  number  of  persons  Y.  637. 

have  separate  and  individual  claims  83.  Cushman  v.  Leland,  93  N.  Y. 

and  rights  of  action  against  the  same  652. 

party,  but  all  arise  from  some  com-  84.  Cuthbert  v.  Chauvet.  14  N.  Y. 

mon  cause,  are  governed  by  the  same  Supp.  385,  per  Lawrence,  J. :     "  The 

legal  rule,  and  involve  similar  facts,  rights  of  the  heirs  can  as  well  be  dis« 

and  the  whole  matter  might  be  set-  posed  of  in  one  action  of  ejectment 

829 


§538 


Relating  to  Multiplicity  of  Suits. 


United  States  courts  have  jurisdiction  by  reason  of  the  subject 
matter  or  the  citizenship  of  the  parties  in  a  proper  case  for  an 
injunction,  the  injunction  may  issue  and  will  be  effectual  to  pre- 
vent the  institution  of  a  multiplicity  of  suits,  or  of  any  suit,  in 
any  other  court,  cither  in  a  Federal  or  a  State  court.85 

§  538.  Where  different  creditors  are  interested. — An  injunc- 
tion will  not  lie  to  prevent  a  multiplicity  of  suits  which  would  lie 
between  different  parties,  though  the  issue  in  each  case  must  be 
determined  on  the  same  state  of  facts.86  Thus  a  sheriff  from  whom 
goods  have  been  replevied  will  not  be  enjoined  from  attaching 
them  in  favor  of  persons  not  parties  to  the  replevin  suit,  on  the 
ground  that  such  successive  attachments  are  vexatious.87  Several 
creditors,  however,  who  are  all  common  victims  of  a  debtor's  fraud, 
may  be  compelled  to  adjudicate  their  claims  in  one  suit  in  equity.8* 


as  in  ten,  and  where  a  multiplicity  of 
suits  is  threatened,  it  is  proper  prac- 
tice to  restrain  the  prosecution  of 
every  suit  but  one,  and  to  allow  that 
one  to  proceed  to  trial  and  final  de- 
termination for  the  purpose  of  test- 
ing the  legal  questions  upon  which  all 
the  actions  are  dependent."  Marvin 
Safe  Co.  v.  Mayor,  etc.,  22  N.  Y.  VV. 
Dig.  523.  And  see  Stamm  v.  Bost- 
wick,  G5  How.  Pr.    (N.  Y.)   358. 

85.  Texas  &  P.  Ry.  Co.  v.  Kute- 
man,  54  Fed.  547,  4  C.  C.  A.  503. 

86.  Dyer  v.  School  District,  No.  1, 
61  Vt.  96,  17  Atl.  788,  per  Royce,  C. 
J.:  "  The  rule  that  a  court  of  equity 
will  interfere  to  prevent  a  multi- 
plicity of  suits  is  not  applicable,  as 
there  would  appear  to  be  no  danger 
of  a  multiplicity  of  suits  between  the 
parties  to  the  bill,  but  only  a  possi- 
bility or  probability  that  other  per- 
sons not  parties  might  bring  other 
suits  for  the  enforcement  of  rights 
asserted  by  them  upon  substantially 
the  same  basis  of  fact." 


87.  Patterson  v.  Seaton,  64  Iowa 
115,  19  N.  \V.  869. 

88.  After  a  creditor  of  an  insolv- 
ent firm  of  wholesale  clothiers  had 
attached  their  entire  stock,  other  per- 
sons claiming  to  be  creditors  for 
goods  sold,  whose  claims  had  not 
matured,  assumed  to  rescind  the 
sales  as  having  been  induced  by 
fraud,  and  replevied  the  goods, 
which  they  took  from  the  pos- 
session of  the  sheriff.  There  wrere 
more  than  fifty  of  these  actions,  some 
claiming  cloth,  some  linings,  and 
others  trimmings,  so  that  entire  gar 
ments  were  replevied  by  persons  who 
had  furnished  the  buttons  thereon, 
and  others  were  sought  to  be  taken 
by  several  different  creditors.  Held, 
that  the  attaching  creditor  may 
maintain  a  suit  to  restrain  further 
proceedings  in  replevin^  to  have  a  re- 
ceiver appointed,  and  compel  the  liti- 
gation of  all  the  adverse  claims  to 
the  property  in  one  suit.  National 
Park  Bank  v.  Goddard,  62  Hun   (N. 


830 


Relating  to  Multiplicity  of  Suits.  §  539 

§  539.  Different  creditors'  actions  not  enjoined. — The  general 
rule  is  that  the  law  favors  rather  than  hinders  the  diligent,  and 
equity  will  not  stay  a  creditor  in  his  efforts  to  secure  the  money 
which  his  debtor  owes  him,  from  the  fact  that  there  are  many 
other  creditors  pursuing  the  same  debtor,  and  that,  therefore,  there 
will  be  a  multiplicity  of  suits.89  And  attachment  creditors  whose 
debts  are  distinct,  and  arise  out  of  separate  transactions,  and  who 
have  no  common  interest,  cannot  be  joined  by  the  debtor  in  one 
suit  in  equity,  in  order  to  avoid  multiplicity  of  suits.90  And  gen- 
erally actions  by  different  persons  on  distinct  and  separate  grounds 
do  not  constitute  a  multiplicity  of  suits,  which  a  court  of  equity 
will  enjoin.91  And  it  has  been  decided  that  a  suit  against  a  debtor 
in  one  State  and  attachment  in  another  State  against  his  property,. 
may  proceed  at  the  same  time  for  the  same  debt  and  that  neither 
proceeding  will  be  enjoined  at  the  instance  of  the  debtor,  because 
persons  who  claim  to  be  creditors  of  the  creditor  have  a  bill  pend- 
ing in  chancery  against  the  creditor,  to  which  the  debtor  has  been 
made  a  party,  the  object  of  which  bill  is  to  seize  all  the  assets  of 
the  creditor  and  have  them  collected  in  by  a  receiver.92  But  the 
prosecution  of  attachment  suits  in  different  States  may  be  enjoined 
where  the  creditor  may  prosecute  his  action  against  the  property 
in  the  State  in  which  the  injunction  is  sought  and  the  obvious 
intent  of  the  suits  which  it  is  sought  to  enjoin  is  to  harass  the 
defendant.93 

Y.),   31,    16  N.  Y.   Supp.  343;    aff'd  91.  Haines  v.  Carpenter,  91  U.  S. 

in  131  N.  Y.  494,  30  N.  E.  566.  254,  23  L.  Ed.  345.     In  Lightfoot  v. 

89.  Hanstein  v.  Johnson,  112  N.  Planters  Banking  Co.,  58  Ga.  136,  it 
C.  253,  17  S.  E.  155.  was  held  that  a  suit  against  a  debtor 

90.  Fielding  v.  Lucas,  87  N.  Y.  in  one  State,  and  an  attachment 
197.  In  Brinkerhoff  v.  Brown,  6  against  his  property  in  another  State 
Johns.  Ch.  139,  151,  a  bill  by  vari-  might  proceed  at  the  same  time, 
oua  distinct  judgment  creditors,  to  though  a  suit  in  chancery  was  also 
render  effectual  their  executions  pending  against  his  creditor,  in 
against  their  debtor,  was  sustained.  which  he  was  made  a  party. 

in  order  to  prevent  a  multiplicity  of  92.  Lightfoot    v.    Planters'    Bank- 
suits,   though   their  only  community  ing  Co.,  58  Ga.   136. 
of   interest    was    in    the    relief  de-  93.  Standard     Roller     B.     Co.     v. 
manded.        See,     also,     Cadignn     v.  Crucible  Steel  Co.    (N.  J.  Ch.  1906),. 
Brown,    120    Mass.    493;     Ballou   v.  63  Atl.  546. 
Hopkintou,  4  Gray   (Maaa.),  324. 

831 


§§  539a,  540,  541        Relating  to  Multiplicity  of  Suits. 

§  539a.  Where  statute  provides  mode  of  procedure;  attach- 
ment suits. — The  fact  that  the  statute  points  out  a  mode  of  pro- 
cedure in  attachment  suits,  and  provides  a  method  for  third  per- 
sons to  assert  their  claims  to  property  attached  which  is  ordinarily 
exclusive  of  all  others,  will  not  deprive  a  court  of  chancery  of  its 
right  to  interpose  for  the  purpose  of  preventing  a  multiplicity  of 
suits.94 

§  540.  Where  instruments  held  by  independent  parties. — The 
mere  fact  that  numerous  independent  parties  hold  separate  instru- 
ments, upon  which  they  might  bring  separate  suits,  is  not  suffi- 
cient to  justify  a  court  of  equity  in  entertaining  an  action  by  the 
maker  to  compel  them  to  litigate  their  claims  in  a  forum  which  he 
selects.  He  must,  in  addition,  establish  the  necessity  of  a  resort 
to  equity,  to  prevent  an  injury  which  might  be  irreparable,  and 
which  equity  alone  is  competent  to  avert.95  And  while  in  such  a 
case  the  apprehension  of  a  multiplicity  of  suits  may  not  alone  be  a 
sufficient  ground  for  restraining  separate  suits  at  law  upon  such 
instruments,  yet  if  to  such  ground  be  added  the  existence  of  a 
defense,  to  establish  which  extrinsic  proof  may  be  necessary  and 
the  risk  of  losing  such  proof,  a  proper  case  may  thus  be  made  out 
for  equitable  relief.30 

§  541.  In  cases  of  interpleader. — Equity  may  interpose  also 
to  prevent  vexatious  litigation,  where  a  bill  of  interpleader  is  filed 
to  protect  a  party  who  is  liable  to  discharge  some  debt,  duty  or 

94.  Bishop  v.  Rosenbaum,  58  Miss.  sort  to  an  equitable  action.  Grand 
84.  Chute  v.  Winegar,  15  Wall.    (U.  S.) 

95.  Town  of  Venice  v.  Woodruff,  355,  21  L.  Ed.  170;  Minturn  v. 
62  N.  Y.  462,  per  Rapallo,  J.:  Farmers  Loan  Co.,  3  N.  Y.  498;  Per- 
"  Whether  the  question  be  regarded  rine  v.  Striker,  7  Paige  (NY.),  598; 
as  one  of  jurisdiction  or  practice,  it  Morse  v.  Hovey,  9  Paige  (N.  Y.), 
is  established  by  the  later  decisions  197;  Field  v.  Holbrook,  6  Duer  (N. 
that  some  special  ground  for  equit-  Y.),  597;  Allerton  v.  Belden,  49  N. 
able  relief  must  be  shown,  and  that  Y.   373. 

the   mere    fact   that    the    instrument  96.  Springport    v.    Teutonia   Sav. 

ought  not  to  be  enforced,  is  insuffi-       Bank,  75  N.  Y.  397. 
«ient,  standing  alone,  to  justify  re- 

832 


Relating  to  Multiplicity  of  Suits.  §  542 

obligation  from  suits  by  two  or  more  persons,  severally  claiming 
to  be  entitled  to  the  benefit  of  such  duty,  debt  or  obligation.97  A 
bill  of  interpleader  can,  however,  be  sustained  only  where  the 
parties  sought  to  be  interpleaded  have  some  right  or  interest  in 
the  subject  matter  of  the  action  which  interferes  with  the  plain- 
tiff's attempt  to  establish  his  own  rights.  Thus  the  fact  that  de- 
fendants have  fraudulently  conspired  for  the  purpose  of  harassing 
the  plaintiff,  by  prosecuting  separate  suits  against  him  for  the 
same  cause,  and  that  such  suits  have  been  commenced  in  pursuance 
of  such  conspiracy,  is  not  sufficient  to  sustain  an  action  or  uphold 
an  injunction,  where  the  defendants  claim  adversely  to  each  other, 
as  well  as  to  the  plaintiff,  and  no  direct  fraud  is  charged.98 

§  542.  In  cases  of  nuisance  and  waste. — The  modern  rule  is 
that  equity  has  concurrent  jurisdiction  with  courts  of  law  in  cases 
of  private  nuisance,  on  the  grounds  of  restraining  irreparable  mis- 
chief and  suppressing  interminable  litigation.99  Thus  under  this 
head  of  equity  jurisdiction,  the  owners  of  several  lots  of  land, 
though  deriving  title  from  different  grantors,  may  join  in  a  bill 
in  equity  to  restrain  a  private  nuisance,  which  threatens  a  con- 
tinuous and  permanent  injury  to  a  passageway,  in  which  they  have 
a  right  of  way  in  common,  as  appurtenant  to  their  several  estates.1 
Where  an  injunction  is  granted  against  future  waste,  an  account 

97.  Conley  v.  Insurance  Co.,  67  493,  per  Morton,  J. :  "  In  Ballou  v. 
Ala.  472;  Burton  v.  Black,  32  Ga.  Hopkinton,  4  Gray  (Mass.),  324,  sev- 
63;  Hathaway  v.  Foy,  40  Mo.  540;  eral  owners  of  mills  on  a  stream 
Cady  v.  Potter,  55  Barb.  (N.  Y.)  joined  as  plaintiffs  in  a  bill  in 
463.  equity,     to    restrain    the    defendant 

98.  McHenry  v.  Hazard,  45  Barb.  from  diverting  and  wasting  the  water 
(N.  Y. )  657.  And  see  Mohawk,  etc.,  of  a  reservoir,  and  to  equalize  the 
R.  Co.  v.  Clute,  4  Paige  (N.  Y.),  392.  flow  of  water  in  the  stream.    Indeed, 

99.  Mowday  v.  Moore,  133  Pa.  St.  the  court  assign  as  one  of  the  rea- 
598,  611,  19  Atl.  626;  Carlisle  v.  sons  for  holding  jurisdiction  in 
Cooper,  21  N.  J.  Eq.  576.  And  see  equity,  that  at  law  each  owner  must 
New  Castle  City  v.  Raney,  130  Pa.  bring  a  separate  action  to  obtain  a 
St.  546,  18  Atl.  1066;  Rhea  v.  For-  remedy  for  his  particular  injury,  and 
syth,  37  Pa.  St.  503;  Rouse  v.  Mar-  thus  the  remedy  in  equity  prevent* 
tin  75  Ala.  510;  Corning  v.  Troy  a  multiplicity  of  suits."  See  also. 
Factory,  40  N.  Y.  191.  Murray  v.  Hay,  1  Barb.  Ch.  (N.  Y.) 

1.  Cadigan   v.   Brown,    120   Mass.      59. 

833 
53 


1543 


Relating  to  Multiplicity  of  Suits. 


for  past  waste  may  be  decreed   as  incidental  to  the   injunctive 
relief,  in  order  to  prevent  multiplicity  of  suit-.2 

§  543.  Where  many  are  injured  by  same  negligence. — While 
courts  of  equity  will  freely  exercise  their  jurisdiction  in  order  to 
prevent  an  unnecessary  and  vexatious  multiplicity  of  suits,  they 
will  not  enjoin  the  prosecution  of  several  pending  actions  at  law, 
instituted  by  different  plaintiffs,  and  compel  their  consolidation 
into  a  single  suit  in  equity,  at  the  instance  of  the  common  de- 
fendant at  law,  merely  because  the  cause  of  action  in  each  of  the 
several  actions  at  law  arose  from  the  same  act  of  negligence  or 
other  single  tort  of  the  common  defendant  at  law.';    This  rule  was 


2.  Ackerman  v.  Hartley,  8  N.  J. 
Eq.  476;  Allison's  Appeal,  77  Pa.  St. 
221;  Coleman's  Appeal,  75  Pa.  St. 
441 ;  Ma88on's  Appeal,  70  Pa.  St. 
26;  Souder's  Appeal,  57  Pa.  St.  498; 
Thomas  v.  Oakley,  18  Ves.  184. 

3.  Tribbette  v.  Illinois  Central  R. 
Co..  70  Miss.  182,  12  So.  32.  On  the 
appeal  in  this  ease  from  the  chal- 
cellor's  decision  overruling  the  mo- 
tion to  dissolve  the  injunction,  it  was 
argued  by  Calhoun  &  Green,  in  the 
course  of  their  prevailing  brief  for 
the  property  owners,  that  the  in- 
junction would  not  in  fact  curtail  the 
litigation,  but  that  the  separate  is- 
sues made  in  the  several  actions  at 
law  would  be  merely  transferred  to 
the  chancery  court,  and  there  raised 
again  by  separate  answers  to  the  bill, 
and  by  separate  cross-bills  and  sepa- 
rate answers  to  those  cross-bills;  that 
any  charges  of  contributory  negli- 
gence would  have  to  be  separately 
pleaded  and  tried,  and  the  findings 
thereon  would  have  to  be  separate,  even 
if  the  question  of  the  company's  neg- 
ligence was  common.  That,  in  fact, 
there  would  be  the  same  number  of 
issues  in  the  one  suit  in  equity  as  in 
all  of  the  actions  at  law,  and  that  the 


costs  would  bo  taxed  in  each  isi  ue  to 
the  parties,  as  they  lost  or  won.  On 
pronouncing  the  decision  that  th* 
property  owners  were  entitled  to 
their  separate  actions  at  law,  and  to 
trial  by  jury,  Chief  Justice  Campbell 
delivered  the  following  opinion: 
"  A  number  of  owners  of  property  in 
the  town  of  Terry,  destroyed  by  firo 
from  sparks  emitted  by  an  engine  of 
the  appellee,  severally  sued  in  the 
Circuit  Court  to  recover  of  the  ap- 
pellee damages  for  the  respective 
losses  by  said  fire,  alleged  to  have  re- 
sulted from  the  negligence  of  the  de- 
fendant. While  these  actions  were 
pending,  the  appellee  exhibited  its 
bill  against  the  several  plaintiffs, 
averring  that  no  liability  as  to  it 
arose  by  reason  of  the  fire,  which 
arose,  not  from  any  negligence  or 
wrong  of  it  or  its  servants,  but  from 
the  fault  of  others,  for  which  it  is 
not  responsible;  and  that  the  plain- 
tiffs in  the  different  actions  are 
wrongfully  seeking  to  recover  dam- 
ages by  their  several  actions,  all  of 
which  grew  out  of  the  same  occur- 
rence, and  depend  for  their  solution 
upon  the  same  questions  of  fact  and 
of  law;    wherefore,    to    avoid   multi- 


834 


Relating  to  Multiplicity  of  Suits. 


§543 


emphasized  by  the  Supreme  Court  of  Mississippi,  in  a  case  where 
several  property  owners  in  the  town  of  Terry  had  each  brought 


plicity  of  suits,  and  the  consequent 
harrassment  and  vexation,  all  of  the 
said  several  plaintiffs  are  sought  to 
be  enjoined  from  prosecuting  their 
different  actions,  and  to  be  brought 
in  and  have  the  controversies  settled 
in  the  one  suit  in  equity.  There  is 
no  common  interest  between  these 
different  plaintiffs,  except  in  the 
questions  of  fact  and  law  involved. 
The  injunction  sought  was  granted, 
and  the  defendants  served  with  pn> 
eess,  when  they  appeared  and  de- 
murred to  the  bill,  and  moved  to  dis- 
solve the  injunction  on  the  face  of 
the  bill.  The  case  was  heard  on  mo- 
tion to  dissolve  the  injunction,  and 
it  was  overruled,  and  an  appeal 
granted.  The  question  presented  is 
as  to  the  rightfulness  of  the  suit 
against  the  defendants,  on  the  sole 
ground  that  their  several  actions  at 
law  involve  the  very  same  matters 
of  fact  and  law,  without  any  other 
community  of  interest  between  them. 
The  granting  and  maintaining  the 
injunction  are  fully  sustained  by  1 
Pom.  Eq.  Jur.,  §  255,  et  seq.,  and  it 
is  probable  that  any  judge  author- 
ized would  have  granted  the  injunc- 
tion upon  the  text  cited.  But  we  af- 
firm, after  careful  examination  and 
full  consideration,  that  Pomeroy  is 
not  sustained  in  his  '  conclusions ' 
stated  in  section  2C9  of  his  most 
valuable  treatise,  and  that  the  cases 
he  cited  do  not  maintain  the  propo- 
sition that  mere  community  of  inter- 
est '  in  the  questions  of  law  and  fact 
involved  in  the  general  controversy, 
or  in  the  kind  and  form  of  relief  de- 
manded and  obtained  by  or  against 
each  individual  member  of  the  nu- 
merous body,'  is  ground  for  the  in- 


terposition of  chancery  to  settle  in 
one  the  several  controversies.  There 
is  no  such  doctrine  in  the  books,  and 
the  zeal  of  the  learned  and  usually 
accurate  writer  mentioned  to  main- 
tain a  theory  has  betrayed  him  into 
error  on  this  subject.  It  has  so 
blinded  him  as  to  cause  the  comfound- 
ing  of  distinct  things  in  his  view  of 
the  subject,  to  wit,  joinder  of  parties 
and  avoidance  of  multiplicity  of 
suits.  It  has  been  found  that  many 
of  the  cases  he  pressed  into  service 
to  support  his  assertion  are  on  the 
subject  of  joinder  where  confessedly 
there  could  be  no  doubt  that  the  mat^ 
ter  was  of  equity  cognizance.  Every 
case  he  cited  to  support  his  text  will 
be  found  to  be  either  where  each 
party  might  have  resorted  to  chan- 
cery, or  been  proceeded  against  ir 
that  form,  and  to  rest  on  some  other, 
recognized  ground  of  equity  interfer- 
ence other  than  to  avoid  multiplicity 
of  suits.  The  cases  establish  this 
proposition,  viz.:  Where  each  of  sev- 
eral may  proceed,  or  be  proceeded 
against,  in  equity,  their  joinder  as 
plaintiffs  or  defendants  in  one  suit 
is  not  objectionable.  But  this  is  a 
very  different  question  from  that, 
whether,  merely  because  many  ac- 
tions at  law  arise  out  of  the  same 
transaction  or  occurrence,  and  de- 
pend upon  the  same  matters  of  fact 
and  law,  all  may  proceed  or  be  pro- 
ceeded against  jointly  in  one  suit  in 
chancery;  and  it  is  believed  that  it 
has  never  been  so  held,  and  never 
will  be,  in  cases  like  those  here  in- 
volved. Where  each  of  several  par- 
ties may  proceed  in  equity  separately 
they  are  permitted  to  unite  and  make 
common  cause  against  a  common  ad- 


£543 


Relating  to  Multiplicity  of  Suits. 


his  separate  action  for  damages  to  his  separate  property,  caused 
by  a  firo  set  by  sparks  from  a  railroad  engine  of  the  common 


versary,  and  one  may  implead  in  one 
suit  in  equity  many  who  are  his  ad- 
versaries in  a  matter  common  to  all 
in  many  cases,  but  never  when  the 
only  ground  of  relief  sought  is  that 
the  adversaries  are  numerous,  and 
the  suits  are  for  that  not  in  itself  a 
matter  for  equity  cognizance.  At- 
tention to  the  distinction  mentioned 
will  resolve  all  difficulties  in  con- 
sidering the  many  cases  on  this  sub- 
ject. There  must  be  some  recognized 
ground  of  equitable  interference  in 
the  subject  matter  of  the  contro- 
versy, or  common  right  or  title  in- 
volved, to  warrant  the  joinder  of  all 
in  one  suit;  or  there  must  be  some 
common  purpose  in  pursuit  of  a 
common  adversary,  where  each  may 
resort  to  equity,  in  order  to  be  joined 
in  one  suit;  and  it  is  not  enough  that 
there  '  is  a  community  of  interest 
merely  in  the  question  of  law  or  of 
fact  involved,'  etc.,  as  stated  by 
Pomeroy  in  section  268.  Although  he 
asserts  that  this  early  theory  has 
long  been  abandoned,  he  fails  utterly 
to  prove  it.  An  examination  of  the 
cases  he  cited  under  section  256  et 
seq.  will  show  this  to  be  true.  The 
opinion  of  the  justice  (Harlan)  in 
Osborne  v.  Railroad  Co.,  43  Fed.  824, 
does  support  the  text  of  Pomeroy, 
and  cites  1  Pom.  Eq.  Jur.,  §§  245, 
257,  268,  293,  and  Crews  v.  Bur- 
cham,  1  Black,  352-357.  We  are  con- 
tent with  what  has  already  been  said 
as  to  the  text  of  Pomeroy,  and  af- 
firm that  but  one  of  his  citations  sus- 
tain his  conclusion,  and  that  the  lan- 
guage of  Harlan,  J.,  in  the  case  cited. 
Nor  does  Crews  v.  Burcham  sustain 
the  language  of  Justice  Harlan.  It 
belongs  to  the  class  of  cases  where 


each  party  might  have  brought  his 
bill,  and  all  who  had  a  common  cause 
were  permitted  to  make  common  con- 
test in  chancery  with  their  adver- 
saries who  were  united  by  a  common 
tie.  The  decision  of  the  case  in  which 
Harlan,  J.,  gives  support  to  the  doc- 
trine of  Pomeroy  is  not  complained 
of,  but  the  opinion  is  not  justified  by 
any  case  with  which  we  have  been 
made  acquainted.  The  case  was  one 
in  which  each  might  have  brought 
his  separate  bill  to  quiet  title,  and  all 
concerned  were  permitted  to  unite  in 
one  bill  against  their  common  adver- 
sary; and  so,  it  is  believed,  will  be 
found  all  the  cases  on  this  subject. 
Certainly,  those  relied  on  by  Pome- 
roy are  of  this  character.  Those 
cited  in  the  note  to  section  269,  in 
which  he  asserts  most  broadly  the 
doctrine  we  combat,  are  Keese  v.  City 
of  Denver,  10  Colo.  113,  15  Pac. 
825;  Carlton  v.  Newman,  77  Me. 
408,  1  Atl.  194;  De  Forest  v.  Thomp- 
son, 40  Fed.  375 ;  Osborne  v.  Rail- 
road Co.,  43  Fed.  824;  Railroad  Co. 
v.  Gibson,  85  Ga.  1,  11  S.  E.  442; 
Railroad  Co.  v.  Schuyler,  17  N.  Y. 
592;  Sheffield  Waterworks  Case,  L. 
R.  2  Ch.  App.  8;  and  Case  of  the 
Complicated  Contract,  Black  v. 
Shreeve,  7  N.  J.  Eq.  440.  The  case 
in  43  Fed.  824,  has  already  been  no- 
ticed supra.  The  opinion  in  the  case 
in  10  Colo.  15  Pac.  Rep.,  quotes  the 
language  of  Pom.  Eq.  Jur.,  §  269,  but 
the  case  was  one  where  one  or  more 
plaintiffs  may  sue  in  equity  for  the 
benefit  of  all  others  similarly  situ- 
ated. Carlton  v.  Newman,  77  Me. 
408,  1  Atl.  194,  affirms  the  jurisdic- 
tion of  equity  to  enjoin  the  collec- 
tion of  an  illegal  tax  for  the  purpose 


836 


Kelating  to  Multiplicity  of  Suits. 


§543 


defendant  company,  and  had  been  enjoined  by  the  chancellor  from 
proceeding  with  those  actions  and  compelled  jointly  to  litigate 


of  preventing  the  multiplicity  of 
suits  where  the  entire  levy  affecting 
all  the  taxpayers  was  illegal.  It  ap- 
pears to  be  exceptional,  and  to  rest 
upon  peculiar  grounds,  not  applic- 
able to  the  case  before  us.  The  opin- 
ion cites  Pom.  Eq.  Jur.,  §  269,  but 
seems  to  rest  on  the  proposition  that 
the  whole  tax  was  illegal.  The  case 
in  40  Fed.  Rep.  375,  was  that  of  a 
plaintiff  exhibiting  a  bill  to  set  aside 
a  sale  of  land,  and  vacate  deeds  made 
in  pursuance  to  it,  against  numerous 
parties,  all  of  whom  claimed  by  sep- 
arate parcels,  but  under  the  proceed- 
ing attacked  as  void.  A  bill  might 
have  been  exhibited  against  each  one 
separately,  and  it  was  held  to  be 
proper  to  unite  all  in  one  suit.  That 
was  clearly  right,  but  Jackson,  J.,  in 
his  opinion,  concurred  in  by  Harlan, 
J.,  cited  Pom.  Eq.  Jur.,  §§  245-269, 
inclusive,  which  we  have  shown  to  be 
unsupported  by  any  case  of  author- 
ity. The  case  in  85  Ga.,  11  S.  E.,  is 
a  case  where  a  few  persons,  as  repre- 
sentatives of  a  class  consisting  of 
many,  exhibited  a  bill  in  behalf  of 
all,  and  lends  no  countenance  to  the 
proposition  for  which  it  is  cited.  The 
cases  in  17  N.  Y.  592,  L.  R.  2  Ch. 
App.  8,  and  7  N.  J.  Eq.  440,  furnish 
no  sort  of  support  to  the  text  of  the 
author,  and  it  is  confidently  claimed 
that  every  case  that  can  be  found,  if 
entitled  to  any  consideration,  will  be 
seen  to  be  one  resting  on  some  other 
principle  than  that  for  which  it  has 
been  cited  in  the  connection  now  un- 
der review.  And  while  judges  have 
in  various  instances  cited,  and  some- 
times quoted,  Pomeroy,  in  the  lan- 
guage alone  characterized  as  unsup- 
ported, in  every   instance,   we  think 


the  case  will  not  call  for  it,  but  to  be 
resolvable  independently  of  it  upon 
other  grounds  of  equitable  interfer- 
ence; and  in  our  opinion  not  one  of 
the  learned  courts  which  have  cited 
or  quoted  Pomeroy  in  the  way  men- 
tioned would  sustain  this  bill  if  it 
were  before  it  for  decision.  There  is 
danger  that  by  frequent  repetitions 
and  piling  up  assertions,  judges  cit- 
ing and  quoting  text  books,  and  text 
writers  citing  the  cases  thus  referring 
to  them,  a  false  doctrine  might  ac- 
quire strength  enough  to  dispute  with 
the  true;  but  we  do  not  believe  that 
any  accumulation  of  dogmatic  asser- 
tion and  citations  and  quotations 
can  ever  establish  the  proposition 
that  a  defendant  sued  for  damages 
by  a  dozen  different  plaintiffs,  who 
have  no  community  of  interest  or  tie 
or  connection  between  them  except 
that  each  suffered  by  the  same  act, 
may  bring  them  all  before  a  court  of 
chancery  in  one  suit,  and  deny  them 
their  right  to  prosecute  their  actions 
separately  at  law  as  begun  by  them. 
It  has  never  been  done.  There  is  no 
precedent  for  it,  and,  while  this  is 
not  conclusive  against  it,  it  is  signifi- 
cant and  suggestive.  If  it  is  true,  aa 
stated  by  Pomeroy  and  some  quoting 
him,  that  mere  community  of  inter- 
est in  matters  of  law  and  fact  makes 
it  admissible  to  bring  all  into  one 
suit  in  chancery  in  order  to  avoid 
multiplicity  of  suits,  all  sorts  of 
cases  must  be  subject  to  the  princi- 
ple; any  limitations  would  be  purely 
arbitrary.  It  must  be  universal  ap- 
plication, and  strange  results  might 
flow  from  its  adoption.  The  wreck- 
ing of  a  railroad  train  might  give 
rise  to  a  hundred   actions  for  dam- 


837 


g  54a 


Relating  to  Multiplicity  of  Suits. 


their  respective  claims  for  damages  in  a  single  suit  in  the  chancery 
court.  The  fact  that  in  such  a  case  there  would  be  great  danger 
of  confusion  at  the  trial,  and  great  difficulty  in  adjusting  the  righta 


agea  instituted  in  a  dozen  different 
counties,  under  our  law  as  to 
venue  of  suits  against  railroad  com- 
panies, in  some  of  which  executors  or 
administrators  or  parent  and  chil- 
dren might  sue  for  the  death  of  a 
passenger,  and  in  others  claims 
would  be  for  divers  injuries.  If 
Poineroy's  test  be  maintainable,  all  of 
these  numerous  plaintiffs,  having  a 
community  of  interest  in  the  ques- 
tions of  law  and  fact,  claiming  be- 
cause of  the  same  occurrence,  de- 
pending on  the  very  same  evidence, 
and  seeking  the  same  kind  of  re- 
lief (damages),  could  be  brought  be- 
fore a  chancery  court  in  one  suit,  to 
avoid  multiplicity  of  suits.  But  we 
forbear.  Surely  the  learned  author 
would  shrink  from  the  contemplation 
of  such  a  spectacle;  but  his  doctrine 
leads  to  it,  and  makes  it  possible. 
The  learned  counsel  for  the  appellee 
here  felt  the  difficulty  of  the  possible 
result  of  the  doctrine  contended  for, 
and  sought  to  limit  its  application  to 
controversies  about  property,  exclud- 
ing those  for  injuries  to  be  redressed 
by  the  estimation  of  juries;  but  as 
we  have  said,  any  such  restriction  is 
arbitrary  and  inadmissible.  If  pre- 
venting multiplicity  of  suits  is  such 
a  good  thing  as  to  justify  bringing 
into  one  suit  all  who  are  interested 
in  the  same  questions  of  law  and 
fact,  it  is  needful  that  the  benefits 
shall  be  extended  to  all  cases  where 
it  can  be  applied,  and  not  restricted 
to  its  beneficent  operations.  It 
should  have  full  sway  in  all  classes 
of  cases.  The  sole  object,  we  are 
told,  of  the  doctrine  is  to  prevent 
multiplicity  of  suits  by   uniting  all 


who  have  a  common  interest  in  the 
same  questions  in  one  suit,  and  it 
is  quite  as  important  to  effect  this  i» 
one  class  of  cases  as  another;  and  a* 
actions  against  railroad  companies 
are  quite  numerous  these  days,  it 
is  of  especial  concern  to  prevent  mul- 
tiplicity in  this  class  of  cases.  There- 
fore, if  the  doctrine  advanced  were 
sound,  it  would  have  to  be  applied 
wherever  the  conditions  prescribed  ex- 
isted— that  is,  wherever  many  are 
interested  in  the  same  questions  of 
fact  and  law.  The  case  of  Supervis- 
ors v.  Deyoe,  77  N.  Y.  219,  contains 
a  good  illustration  of  what  we  have 
said.  In  that  case  the  suit  against 
numerous  parties  was  maintained  be- 
cause it  combined  elements  of  juris- 
diction in  each  of  the  cases  of  inter- 
pleader, bill  of  peace,  and  cancella- 
tion of  written  instruments.  The  re- 
covery of  damages  for  a  tort  or 
breach  of  contract  does  not  pertain 
to  courts  of  chancery,  which  decree 
damages  only  in  a  very  limited  class, 
of  cases,  or  under  peculiar  circum 
stances,  or  as  an  incident  to  some 
other  relief.  1  Pom.  Eq.  Jur.,  §  112; 
2  Story,  Eq.  Jur.,  §  799.  Even  this. 
learned  author  (Pomeroy),  does  not 
say  that  the  existence  of  numerous 
suits  for  damages  by  a  tort  or  breach 
of  contract,  where  one  case  depends 
on  the  same  questions  of  fact  and 
law,  may  be  drawn  into  chancery  in 
one  suit,  and  no  case  has  been  found 
to  warrant  it.  Every  case  cited  by 
Pomeroy  and  by  the  learned  and  dili- 
gent counsel  in  this  case  has  been 
examined,  and  may  be  disposed  of 
on  some  other  principle  acted  on  by 
courts    of   chancery    than    that    con- 


838 


Relating  to  Multiplicity  of  Suits. 


§544 


of  all  the  parties  in  one  decree,  is  an  important  reason  for  not 
uniting  such  separate  actions  for  damages  in  one  suit  in  equity.* 
§  544.  Enjoining  some  of  many  suits. — A  person  who  is  being 
sued  separately  by  several  persons  in  respect  to  the  same  subject 
matter,  may  be  entitled  to  enjoin  some  of  them  from  proceeding 
with  their  actions  while  others  will  be  permitted  to  continue.5 


tended  for,  and  necessary  to  sustain 
the  bill  in  this  case.  Every  case  is 
resolvable  on  some  well-recognized 
principle  of  equity  procedure,  and 
not  one  sustains  the  bill.  The  cases 
repudiating  the  doctrine  contended 
for  are  numerous.  We  do  not  cite 
them,  for  it  is  unnecessary,  in  view 
of  the  fact  that  not  a  case  has  been 
found  in  England  or  America  to  sus- 
tain the  bill.  No  question  as  to  mis- 
take or  jurisdiction  between  courts  of 
law  and  chancery  within  the  com- 
templation  of  section  147  of  our  Con- 
stitution, arises  in  this  case;  for  if 
we  had  only  one  forum,  armed  with 
full  power  to  administer  all  remedial 
justice,  joinder  of  these  parties  in 
one  action  would  not  be  admissible. 
Bliss,  Code  PL  This  author  says 
( section  76 )  :  '  Two  or  more  owners 
of  mills  propelled  by  water  are  inter- 
ested in  preventing  an  obstruction 
above  that  shall  interfere  with  the 
downflow  of  the  water,  and  may  unite 
to  restrain  it  or  abate  it  as  a  nuis- 
ance; but  they  cannot  hence  unite  in 
an  action  for  damages,  for,  as  to  the 
injury  suffered  there  is  no  commun- 
ity of  interest.  There  is  no  more  a 
common  interest  than  though  a  car- 
rier had  at  one  time  carelessly  de- 
stroyed property  belonging  to  dif- 
ferent persons,  or  the  lives  of  differ- 
ent passengers.' — thus  putting  the 
very  case  we  have.  The  Supreme 
Court  of  California  has  cited  with 
approval  this  very  section.  We  thus 
confront   Pomeroy   with    an    equally 


intelligent  author,  and  a  decision  by 
the  Supreme  Court  of  his  own  State, 
at  war  with  his  views  on  this  sub 
ject,  if  indeed,  it  is  true  that  he 
would  uphold  this  bill,  which  we  do 
[not  believe.  We  have  written  so  much 
to  combat  error  supported  by  a  dis- 
tinguished author,  and  which  has  had 
a  misleading  influence,  which  should 
be  counteracted  before  further  injury 
results  from  it,  as  far  as  in  our 
power  to  do  it.  Reversed,  and  in 
junction   dissolved." 

4.  Cadigan   v.    Brown.    120   Mass. 
493,  495. 

5.  Aleck  v.  Jackson,  49  N.  J.  Eq. 
507,  per  Green,  V.  C:  "The  com 
plainant  was  being  subjected  to  nu- 
merous law  suits  by  those  who  had 
furnished  materials  and  labor  in  the 
construction  of  her  house.  Her  li- 
ability to  these  persons  arises  under 
the  mechanics'  lien  law,  and  is  lim 
ited  in  aggregate  amount  to  what, 
may  be  due  from  her  to  Jackson.  She 
could  not  safely  pay  those  claims  un- 
til that  amount  was  ascertained,  and 
her  bill  as  filed  presented  a  clear  case 
of  interpleader.  Its  character  as  such 
is  changed  by  the  position  of  Jack- 
son. I  think  she  is  entitled  to  have 
the  case  retained  until  the  amount 
of  her  indebtedness  to  Jackson  is  as- 
certained by  the  trial  of  his  suit  at 
the  circuit,  and  to  that  end  that  the 
injunction  be  dissolved  as  to  Jack- 
son's prosecuting  that  suit,  but  re- 
tained as  to  the  other  defendants." 


839 


Staying  Actions  and  Suits. 


CHAPTER  XIX. 

Staying  Actions  and  Suits. 

Section  544a.  Jurisdiction  to  stay  actions  generally. 
544b.  Same  subject — Limitation  on  power. 

545.  Parties   not  court  restrained. 

546.  Court's  action  not  ground  for  injunction. 
54Ga.  Party  must  come  with  clean  hands. 

547.  In  cases  of  fraud — Malice. 

548.  Same  subject — Accident. 

549.  Action  enjoined  on  ground  of  mistake. 

550.  Enjoining  actions  on  fraudulent  instruments,  etc. 

551.  Knjoining  actions  on  notes. 

552.  Action  at  law  not  enjoined  at  instance  of  third  persona. 

553.  Statutory   requisites — Jurisdiction — Damages. 

554.  Action  at  law  not  enjoined  unless  shown  to  be  necessary. 

555.  No  injunction  where  there  is  remedy  by  appeal. 

556.  Same  subject — Where  no  jurisdiction. 
657.  No  injunction  where  remedy  by  certiorari. 

558.  The  effect  of  enjoining  action  at  law. 

558a.  To  protect  persons  acting  under  orders  of  court. 

559.  Enjoining  actions  against   receivers. 

560.  As  to  arbitrators  and  awards. 

561.  As  against  garnishees. 

562.  Protecting  surety  where  creditor  has  collaterals. 

563.  Enjoining  attachments  of  property  of  insolvent. 

564.  Interpleader  and  injunction. 

565.  Same  subject. 

566.  Enjoining  action  at  law  in  case  of  set-off. 

567.  Enjoining  action  \Vhere  creditor  agreed  to  release  claim. 

568.  Same  subject. 

569.  Actions  barred  by  statute  of  limitations. 

570.  Same  subject. 

571.  In  cases  of  res  ad  judicata. 

572.  Same  subject — Equitable  estoppels. 

573.  Restraining  the  enforcement  of  void  ordinances. 

574.  Criminal  proceedings  not  enjoined. 

575.  Enjoining  fraudulent  defenses. 

576.  Same  subject — Enjoining  married  woman. 
576a.  Where  adequate  remedy  at  law. 

577.  Defensible  action  at  law  not  enjoined. 

578.  Same  subject — Court's  discretion. 

579.  Same  subject — Summary  proceedings. 

840 


Staying  Actions  and  Suits.  §  544a 

Section  580.  Same   subject — Mandamus  proceedings. 

581.  Enjoining  condemnation  proceedings. 

582.  Same  subject — Where  injunction  proper. 

583.  Enjoining  defensible  actions  at  law — Qualification  of  rule. 

584.  Partition  suits. 

585.  Same  subject — Concurrent  jurisdiction. 

586.  Enjoining  action  of  ejectment — Reforming  deed — Where  vested 

remainder. 

587.  Enjoining  ejectment  of  a  possessor  under  contract  of  sale. 

588.  Ejectment  of  tenant  when  enjoined. 

589.  Restraining  action  in  ejectment  for  laches. 

590.  When  ejectment  not  enjoined  for  mistake. 

591.  When  action  of  trespass  will  not  be  enjoined. 

592.  Action  for  forcible  entry — Rules  as  to  enjoining. 

593.  Enjoining  foreclosure  of  mortgage. 

594.  Same  subject — Set-off  against  mortgage. 

595.  Enjoining  action  at   law  by   mortgage   after  mortgage   debt   i» 

paid. 

596.  Action  at  law  for  breach  of  covenants  in  deed. 

597.  Priority  of  suits. 

598.  Same  subject. 

599.  Where  jurisdiction  is  concurrent. 

600.  Federal  injunctions  against  proceedings  iu  State  courts. 

601.  Same  subjects — Enjoining  administrators. 

601a.  Injunctions    in    State    courts    against    proceedings    in    Federal 
courts. 

602.  Enjoining   further    proceedings    in   State   court   in    case   of    re- 

moval. 
602a.  Where  tribunal  has  exclusive  jurisdiction. 

603.  Enjoining  equity  action  in  same  court. 

604.  Same  subject. 

605.  Action  not  enjoined  because  of  foreign  suit. 

606.  Enjoining  proceedings  in  another  State. 

606a.  Same   subject — Suit   in   one    State    to   evade    laws   of    another 

State. 
606b.  Enjoining  appeals. 

607.  In  cases  of  usury. 

Section  544a.  Jurisdiction  to  stay  actions  generally. — When  a 

court  of  equity  assumes  jurisdiction  of  a  controversy  between  the 
parties  it  has  full  and  complete  jurisdiction  and  may  render  a 
final  judgment  in  relation  to  all  matters  involved  in  and  growing 
out  of  that  controversy  and  may  restrain  the  prosecution  of  other 
suits  which  involve  a  determination  of  the  same  matters  in  dispute 
as   in  the  proceeding  before  it  until  a  final  judgment  has  been 

841 


§  544a  Stayixg  Actions  and  Suits. 

rendered.1     The  power  of  a  court  of  equity  to  exercise  this  juris- 
diction is  exerted  when  necessary  to  prevent  injustice,  to  avoid 
multiplicity  of   actions,   and   to  prevent   interference   where,  the 
jurisdiction  of  equity  has  once  attached  when  interference  would 
render  the  jurisdiction  ineffectual.2     In  New  York  it  is  decided 
that  the  jurisdiction  of  a  court  of  equity  to  restrain  proceedings 
at  law,  in  cases  where  the  exercise  of  this  jurisdiction  is  essential 
to  the  complete  administration  of  justice,  and  the  proper  security 
of  the  rights  of  the  litigants,  has  been  devolved  upon  the  Supreme 
Court  under  its  present  organization,  and  has  not  been  abrogated, 
or  abridged,  in  any  of  its  essential  features,  by  the  union  of  the 
two  jurisdictions  in  law  and  equity,  in  a  single  tribunal.3     So 
injunction  may  sometimes  be  sought  to  restrain  a  suit  at  law 
where  the  latter  only  involves  a  portion  of  the  controversy  or  is 
likely  to  leave  an  apparent  record  title  clouding  the  legal  title  in 
issue.4     And  if  a  final  and  complete  determination  of  the  rights 
involved  cannot  be  had  in  a  court  of  law  the  action  therein  may  be 
enjoined  if  such  a  determination  can  be  reached  in  a  court  of 
equity.5     Again,  while  it  is  the  settled  rule  that  bills  in  equity 
must  be  brought  in  a  county  where  one  of  the  defendants  against 
whom  substantial  relief  is  prayed,  resides,  this  rule  does  not  apply 
to  bills  for  injunction  ancillary  to  suits  at  law.    In  such  cases  the 
court  of  equity  of  the  county  where  the  suit  is  pending  has  juris- 
diction to  enjoin  the  suit  at  law,  and  also  to  grant  relief,  as  to  all. 
matters  involved  in  a  proper  settlement  of  the  litigation  pending 
at  law.6    And  in  a  recent  case  in  New  Jersey  it  is  decided  that 
where  an  application  for  a  preliminary  injunction  restraining  a 
suit  at  law  is  based  upon  the  claim  that  the  subject  matter  of  the 
action  at  law  has  been  under  the  consideration  of  the  chancery 

1.  Maloney  v.  King,  30  Mont.  414,  4.  Shaw  v.  Chambers.  48  Mich. 
76  Pac.  939.     See,  also,  Watkins  v.'     355,  12  N.  W.  486. 

Tallahassee     Falls    Mfg.    Co.      (Ala.  5.  Watkins    v.    Tallahassee    Falls 

1905),  38  So.  756.  Mfg.  Co.   (Ala.  1905),  38  So.  756. 

2.  Fielding  v.  Lucas,  87  N.  Y.  197.  6.  Clark  v.  Beall,  39  Ga.  533.    See 

3.  Fielding  v.  Lucas,  87  N.  Y.  197.  Hayes  v.  O'Brien,  149  111.  403.  37  N. 
Per  Andrews,  J.,  citing  Erie  Ry.  Co.  E.  73,  23  L.  R.  A.  555:  Davison  v. 
v.  Ramsey,  45  N.  Y.  637.  Hough,  165  Mo.  561,  65  S.  W.  731. 

842 


Staying  Actions  and  Suits.         §§  544b,  545 

court  and  the  same  issues  determined  against  the  defendant,  the 
complainant  is  entitled  to  the  relief  sought.7 

§  544b.  Same  subject;  limitation  on  power. — A  court  of  equity 
cannot,  it  is  decided,  restrain  by  injunction  a  party  to  a  cause  in 
another  jurisdiction,  at  the  instance  of  the  opposing  party,  from 
having  the  court  to  proceed  to  final  adjudication  in  the  absence 
of  some  special  equity  not  cognizable  by  the  court  trying  the 
cause.8  And  where  a  petition  for  an  injunction  merely  traverses 
allegations  of  fact  which  are  alleged  in  the  declaration  in  the  action 
at  law,  a  sufficient  ground  for  an  injunction  against  the  latter 
action  is  not  shown.9  And  in  a  case  in  New  York  it  is  said  that 
for  one  court  to  restrain  proceedings  in  another  court  of  equal, 
dignity  already  possessed  of  a  litigation,  is  a  high  exercise  of 
authority,  and  will  seldom  be  done  where  the  first  court  has  means 
to  render  full  justice  between  the  parties.10  And  in  other  cases  it 
is  declared  that  the  jurisdiction  of  a  court  of  equity  by  action  to 
restrain  proceedings  in  actions  pending  in  courts  of  law  should  be 
sparingly  exercised  and  only  when  other  remedies  are  inadequate 
and  the  equities  invoking  its  jurisdiction  are  apparent  and  strong.11 
And  a  change  of  venue  should  be  obtained  by  motion  in  the  action 
rather  than  by  an  injunction  in  another  action.12 

§  545.  Parties,  not  court,  restrained. — An  injunction  staying 
proceedings  at  law  operates  in  restraint  of  the  party  and  is  in  no 
sense  a  prohibition  upon  the  action  of  the  legal  tribunal  and  a 
judgment  of  such  court  is  not  void  because  of  the  disobedience  of 

7.  Logan  v.  Flattan  (N.  J.  1907),  (N.  Y.)  612;  Savage  v.  Allen,  54  N. 
67  Atl.   1007.  Y.  458,  463. 

8.  Birmingham  Ry.  &  E.  Co.  v.  11.  Norfolk  &  New  Brunswick  H. 
Birmingham  Tract  Co.,  121  Ala.  475,  Co.  v.  Arnold,  143  N.  Y.  265,  38  N. 
25  So.  777.  E.  271,  cited  in  Kerngood  v.  Pond,  84 

9.  Gray  v.  Chicago,  M.  &  St.  P.  App.  Div.  (N.  Y.)  227,  82  N.  Y. 
Ry.  Co.,  140  Fed.  337.  See  Mclnnes  Supp.  723.  See  Gould  v.  Edison  Elec 
v.  Mclnnes  Brick  Mfg.  Co.  (N.  J.  Ilium.  Co.,  26  Misc.  R.  (N.  Y.)  64,  58 
Ch.),  38  Atl.  182.  N.  Y.   Supp.  465. 

10.  Von    Prochazka   v.    Von    Pro-  12.  Reis  v.  Graham,  122  App.  Div. 
chazka,  3  N.  Y.  Supp.  301.  Per  Pratt,       (N.  Y.)  312?  106  N.  Y.  Supp.  645. 
J.,  citing  Grant  v.  Quick,   5   Sandf. 

843 


§  545  Staying  Actions  and  Suits. 

such  injunction.13  And  an  injunction  against  an  action  upon  a 
judgment  obtained  in  another  State  does  not  involve  a  denial  of 
the  authority  of  the  court  which  rendered  it,  or  of  the  legality  of 
its  action,  but  is  strictly  in  personam  to  restrain  the  party  who 
obtains  it  from  using  it  unconsciously,"  the  invariable  rule  being 
that  an  injunction  to  restrain  an  action  at  law  is  directed  to 
the  parties,  and  not  to  the  court  in  which  the  action  is  pending.1' 
So  it  is  said  in  a  recent  case  that  in  the  exercise  of  the  power  to 
restrain  a  person  from  bringing  a  suit  in  a  foreign  State  the  courts 
do  not  pretend  to  direct  or  control  the  foreign  court,  but  the  decree 
acts  solely  on  the  party  and  that  the  jurisdiction  rests  on  the 
authority  vested  in  courts  of  equity  over  persons  within  the  limits 
of  their  jurisdiction  and  amenable  to  process  to  stay  acts  contrary 
to  equity  and  good  conscience.16  And  an  injunction  granted  at 
the  instance  of  a  private  person,  restraining  a  judge  duly  com- 
missioned from  discharging  his  judicial  functions,  is  unwarranted 
and  void.17  An  injunction  restraining  the  plaintiff,  in  an  action 
at  law,  from  further  prosecution  of  it,  does  not  take  away  the  juris- 
diction of  the  law  court  to  try  the  action,  and  the  judgment  ren- 
dered therein  will  not  be  void  because  of  the  injunction.18  An 
application  by  a  party  or  privy  to  a  suit  or  proceeding  in  chancery 

13.  Geddis  v.  Donovan  (Mich.  sphere,  and  cannot  be  restrained  in 
1908),  114  N.  W.  874.  Per  Hooker,  J.  the  discharge  of  his  functions  by  the 

14.  Stanton  v.  Embry,  46  Conn.  fiat  of  a  brother  judge.  The  suitors 
<55.  of    his    court    may    be    restrained    in 

15.  Tyler  v.  Hamersley,  44  Conn.  proper  cases  from  proceeding  before 
419,  26  Am.  Rep.  479;  Mors  v.  La-  him,  but  no  such  process  can  run 
denburg,    178    Mass.    272,    59    N.    E.  against  him." 

676;   Erie  R.   Co.  v.  Ramsey,  45  N.  18.   Piatt   v.    Woodruff,    61    N.   Y. 

Y.   628,  649;    Sanders   v.   Metcalf,    1  379,  per  Gray,  C:    "While  the  com- 

Tenn.  Ch.  419.  mon  law  and  equity  courts  were  sep- 

16.  Royal  League  v.  Kavanagh,  arate  tribunals  in  this  State,  a  court 
233  111.  175,  84  N.  E.  178.  Per  of  law  did  not  hold  a  party  to  a  suit 
Dunn,  J.  pending  in  it  who  should  proceed  in 

17.  Sanders  v.  Metcalf,  1  Tenn.  his  suit  in  violation  of  an  injunc- 
Ch.  419,  per  Cooper,  Ch.:  "That  the  tion  of  a  court  of  chancery  as  even 
judge  of  another  court  should  have  irregular  in  his  practice,  but  left 
the  power  to  issue  an  injunction,  him  to  the  sufficient  power  of  that 
cannot  be  conceded  for  a  moment.  court  to  vindicate  its  own  authority. 
Each   judge   is   supreme   in   his   own  Grazebrook   v.   McCreedie,    9    Wend. 

844 


Staying  Actions  and  Suits.         §§  546,  546a 

for  an  order  to  stay  the  proceedings  against  him,  on  the  ground 
that  it  is  inequitable  to  proceed,  must  be  made  directly  to  the  court 
itself  in  that  suit  or  matter;  and  he  is  not  authorized  to  obtain  a 
stay  of  such  proceedings  by  a  preliminary  injunction  allowed  by 
an  officer  of  court,  upon  a  bill  filed  for  that  purpose.19 

§  546.  Court's  action  not  ground  for  injunction. — An  action 
at  law  will  not  be  enjoined  because  of  the  refusal  of  the  court  to 
postpone  the  trial,  for  that  is  a  matter  in  the  discretion  of  the  law 
court,  with  which  a  court  of  equity  will  not  interfere.20  Nor  will 
an  action  be  enjoined  because  of  the  court's  refusal  to  grant  a  new 
trial,  nor  because  arbitrators  would  not  give  a  party  an  opportunity 
to  impeach  his  opponent's  witness,  of  the  object  of  whose  evidence 
he  knew  beforehand.21  And  an  action  at  law  will  not  be  restrained 
because  of  laches,  if  it  be  commenced  within  the  period  allowed 
by  the  statute  of  limitations.22  And  courts  in  granting  injunctions 
cannot  proceed  upon  the  theory  that  other  courts  or  judges  will 
act  erroneously  or  exercise  their  discretion,  when  that  is  appealed 
to,  ill-advisedly  or  improperly.  Therefore,  a  court  will  not  grant, 
an  injunction  restraining  a  person  in  a  pending  suit  from  obtain- 
ing an  injunction  against  the  complainant  in  that  suit  where  the 
only  ground  for  the  granting  of  such  injunction  is  that  the  writ 
of  injunction  in  the  other  case  may  be  improperly  issued  upon  a 
state  of  facts  which  do  not  warrant  its  issuance.23 

§  546a.  Party   must   come   with   clean  hands. — The   general 

437,   442.      And    now    that  law   and  19.  Ellsworth    v.    Cook,    8    Paige 

equity  are  separately  administered  by  (N.   Y.),    643;     Dyckman   v.   Kerno- 

the  same  tribunal,  each  judge  having  chan,  2  Paige  (N.  Y.),  26. 

equal  power  as  well  to  grant  as  to  20.  Hamilton  v.   Dobbs,    19   N.  J. 

vacate    an    injunction   order,   it  does  Eq.  227. 

not  follow   that   a   judge   holding   a  21.  Woodworth  v.  Van  Buskerk,  1 

purely  law  court   is  divested  of   his  Johns.  Ch.   (N.  Y.)   432. 

jurisdiction  to  proceed  in  an  action  22.  Clark  v.  Clapp,  14  R.  I.  248. 

pending   in    it,  because   of    an   order  And  see  Concord  City  v.  Norton,  16 

made  by  another  judge  of  the  same  Fed.  477. 

court   in  the   exercise   of   his   equity  23.      Robertson      v.      Montgomery 

powers,  forbidding  a  party  in  a  law  Baseball  Ass'n,  141  Ala.  348,  37  So. 

suit  from  further  prosecuting  his  ac-  388. 

tion." 

845 


§  547  Staying  Actions  and  Suits. 

principle  that  he  who  comes  into  equity  must  come  with  clean 
hands  applies  to  those  cases  where  a  party  seeks  to  enjoin  the 
prosecution  of  a  suit  at  law.  Protection  will  not  be  given  to  one 
where  the  situation  results  from  his  own  fraud  and  wrong  com- 
mitted against  the  one  who  is  attacking  that  fraud  and  wrong, 
and  whose  efforts  to  that  end  it  is  sought  to  forestall.24 

§  547.  In  cases  of  fraud ;  malice. — A  court  of  equity  will  inter- 
fere to  restrain  the  use  of  an  advantage  gained  in  a  court  of  ordi- 
nary jurisdiction,  which  must  necessarily  make  that  court  an 
instrument  of  injustice,  in  all  cases  where  such  advantage  has  been 
gained  by  the  fraud,  accident  or  mistake  of  the  opposite  party.25 
But  though  courts  of  equity  and  of  law  have  concurrent  jurisdic- 
tion in  cases  of  fraud,  yet  if  a  suit  be  first  brought  in  a  court  of 
law  in  which  the  question  of  fraud  may  be  tried  and  determined, 
the  party  injured  by  the  fraud  must  make  his  defense  there,  and  if 
he  neglects  to  do  so,  equity  will  not  relieve  him  by  injunction.26 
The  general  principle  has  been  applied  where  an  administrator 
obtained  a  judgment  in  another  jurisdiction  without  intentional 
fraud,  but  which  it  would  have  been  a  fraud  for  the  intestate  to 
take,  if  living,  by  reason  of  a  special  agreement  with  the  defend- 
ants, in  view  of  which  they  acted  in  the  suit.27  But  an  action  will 
not  be  restrained,  on  the  ground  that  it  is  brought  with  a  malicious 

24.  Chesapeake  Guano  Co.  t.  Coal  Co.  v.  Ryon,  188  Pa.  St.  138, 
Montgomery,    116    Ala.    384,    22    So.       41  Atl.  402. 

497 ;  Reeves  v.  Cooper,  12  N.  J.  Eq.  26.  Ileden    v.     Garden,     7     Leigh 

223.  (Va.),  157. 

25.  Connecticut. — Stanton  v.  Em-  27.  Stanton  v.  Emhry,  46  Conn, 
bry,  46  Conn.  595;  Pierce  v.  Olney,  595;  Pearce  v.  Olney,  20  Conn.  544. 
20  Conn.  544.  In  Weed  v.  Grant,  30  Conn.   74,  H., 

Massachusetts. — Tompson     v.     Na-  having   indorsed    his   guaranty    on   a 

tional     Bank     of     Redemption,     106  note,  B.  &  Co.  died,  and  the  note  was 

Mass.  128.  presented  against  his  estate,  and  al- 

New    Jersey. — Acquackanonk     Wa-  lowed  by  the  commissioners,  hut  be- 

ter  Co.  v.  Manhattan  Life  Ins.   Co.,  fore  they  had   returned   their  report 

36  N.  J.  Eq.  586.  to   the  Probate    Court    the    creditor 

tfew    York. — Dinsmore     v.     Neres-  took  a  new  note  from  the  individual 

heimer,  32  Hun   (N.  Y.),  204.  members  of  B.  &  Co.  and  gave  up  the 

Pennsylvania. — Natalie    Anthracite  old   note.      The    commissioners,    not 

840 


Staying  Actions  and  Suits.         §§  548,  54U 

motive,  as  the  law  does  not  inquire  into  the  motives  which  lead  a 
man  to  do  what  he  has  the  right  to  do.28 

§  548.  Same  subject;  accident. — To  entitle  a  defendant  to  an 
injunction  to  restrain  the  prosecution  of  an  action  at  law,  he  must 
show  by  the  averments  of  his  bill,  not  only  that  he  has  a  valid 
defense,  but  also  that  it  is  such  that  he  cannot  fully  avail  himself 
of  it  in  the  action  at  law,  or  if  it  is  a  legal  defense  that  he  is 
prevented  from  making  it  at  law  by  fraud,  accident,  or  some  ad- 
ventitious cause  unmixed  with  laches  or  negligence  on  his  part."'8 
Injunctive  relief  against  an  injury  resulting  from  accident,  is  an 
ancient  branch  of  equity  jurisdiction.  Thus,  the  loss  of  a  con- 
veyance in  a  chain  of  title,  without  negligence  or  misconduct  on 
the  part  of  complainant,  has  been  held  to  entitle  him  to  an  injunc- 
tion to  restrain  proceedings  at  law  to  deprive  him  of  possession.38 
And  the  loss,  at  a  trial,  of  a  written  agreement,  without  which  the 
maker  of  a  note  could  not  establish  his  defense  to  an  action  on  the 
note,  has  been  held  to  entitle  him  to  an  injunction  against  the 
judgment.31 

§  549.  Action  enjoined  on  ground  of  mistake. — Where  the 
trustees  of  a  religious  corporation  gave  a  bond  secured  by  a  mort- 
gage on  the  corporate  property,  and  which,  in  strict  legal  effect, 
bound  them  individually,  a  court  of  equity  will  enjoin  an  action 

knowing  this,  reported  the  claim  as  tion  against  the  acceptor  of  a  draft 

allowed  by  them,  and  the  administra-  was   enjoined    because    of    an    utter 

tors,   in   like    ignorance,   allowed   the  failure   of  consideration, 

time  for  appealing  from  the  report  to  28.  Clark  v.  Clapp,  14  R.  I.  248. 

pass  by;  afterwards,  on  learning  the  29.   Evans   v.   Taylor,   28    W.   Va. 

facts,  they  refused  to  pay  the  claim,  184,   187;   Shields  v.  McClung,  6  W. 

and  the  creditors  sued  them  on  the  Va.  79;    Meem  v.  Rucker,   10  Gratt. 

probate  bond  to  recover  the  amount,  (Va.)   506. 

but  was    enjoined    from    prosecuting  30.  Butch  v.  Lash,  4  Iowa,  215. 

the  suit,  for,  as  Ellsworth,  J.,  said:  31.  Vathir  v.  Zane,  6  Gratt.  (Va.) 

"Of  all  men,  he  knew  what  had  been  246.      See,   also,   Wilson  v.  Davis,    1 

done,  and  on  every  principle  of  jus-  Marshall,   219.     When  the  judgment 

tice  and    honor,    he    cannot  be  per-  complained  of  has  not  resulted  from 

mitted  after  the  note  has  been  paid  unavoidable   accident,    but    from   de- 

and  canceled,  to  resist  this  applica-  fendant's  own  negligence  or  omission 

tion  for  relief."     See,  also,  Ferguson  to  properly  make  his  defense,  he  will 

t.  Fiflk,  28  Conn.  501,  where  an  ac-  not  be  relieved  from  it  by  injunction. 

847 


§550 


Staying  Actions  and  Suits. 


at  law  against  them  thereon,  if  it  appears  that  they  did  not  intend 
to  become  personally  liable.32  And  in  a  similar  case,  a  suit  on  an 
indemnity  bond  was  enjoined  on  its  appearing  that  the  obligor 
supposed  he  was  signing  a  recognizance.33  But  an  ejectment  suit 
cannot  be  enjoined  in  favor  of  one  who  has  innocently  encroached 
by  mistake.34  And,  where  a  bill  filed  in  the  court  below,  contains 
no  charges  of  fraud,  but  merely  alleges  certain  mistakes  and 
omissions  of  facts  in  the  bill  of  exceptions,  there  is  no  ground  for 
enjoining  the  prosecution  of  the  writ  of  error.35 

§  550.  Enjoining  actions  on  fraudulent  instruments,  etc — 
Courts  of  equity  have  a  well  established  jurisdiction  to  cancel  and 
set  aside  written  instruments  on  the  ground  of  fraud  in  their  pro- 
curement ;36  and  in  such  cases  an  incidental  and  necessary  part  of 
the  remedy  in  equity  is  the  power  to  control  and  restrain  any 
action  at  law  which  has  been  brought  to  enforce  the  fraudulent 


,32.  Maps  v.  Cooper,  39  N.  J.  Eq. 
316. 

3,3.  Field  v.  Cory,  7  N.  J.  Eq.  574. 
Where  F.  was  induced  by  the  repre- 
sentations of  R.  that  he  had  discov- 
ered a  valuable  coal  mine  on  the  bank 
of  the  Ohio  river,  to  enter  into  a  con- 
tract for  the  purchase  of  a  tract  of 
land,  stated  by  R.  to  embrace  the 
mine;  and  besides  paying  to  R. 
$4,400,  F.  covenanted  to  pay  him 
$1,000  annually,  for  twenty  years; 
but  which  annuity  was  to  cease,  if, 
after  the  mine  was  faithfully  worked 
by  F.,  it  should  not  produce  at  least 
12,000  chaldrons,  etc.,  and  the  land 
was  accordingly  conveyed  by  R.  to 
F.  It  appearing  that  there  was,  in 
fact,  no  coal  mine  within  the  bound- 
aries of  the  land  conveyed,  though 
there  was  coal  adjoining  it,  in  the 
bed  of  the  river,  which  was  navig- 
able, deep,  and  rapid;  but  the  work- 
ing of  the  mine,  if  practicable,  would 
be  very  hazardous,  expensive  and  un- 


profitable; the  contract,  on  the  part 
of  F.,  was  held  to  be  founded  in  mis- 
take and  misrepresentation;  and  R. 
was  perpetually  enjoined  by  Chan- 
cellor Kent  from  bringing  any  suit 
against  F.  to  recover  the  annuity  so 
agreed  to  be  paid  by  him.  Dale  v. 
Roosevelt,  5  Johns.  Ch.   (N.  Y.)    174. 

34.  Kirchner  v.  Miller,  39  N.  J. 
Eq.  355.  As  to  what  mistake  will  be 
a  ground  for  restraining  an  eject- 
ment suit,  see  Bush  v.  Hicks,  60  N. 
Y.  298. 

35.  Ford  v.  Weir,  24  Miss.  563. 
See  Kohn  v.  Lovett,  43  Ga.  179, 
where  the  enforcement  Of  a  judgment 
was  restrained  because  the  certify- 
ing judge,  without  fault  of  counsel, 
dismissed  by  mistake  a  meritorious 
bill  of  exceptions. 

,36.  Pettit  v.  Shepherd,  5  Paige 
(N.  Y.),  493;  Hamilton  v.  Cum- 
minga,  1  Johns.  Ch.  (N.  Y.)  520, 
524. 


848 


Staying  Actions  and  Suits.  §  551 

instrument.37  Where,  on  a  bill  to  restrain  proceedings  at  law,  the 
question  is  one  of  fraud,  and  the  complainant  shows  that  his  injury 
will  be  irreparable  if  the  fraud  prevails,  he  will  not  be  remitted 
to  a  court  of  law  when  the  question  can  be  better  examined  in 
equity,  and  especially  when  the  proceeding  in  the  law  court  is  of 
a  summary  character.38  And  an  action  to  procure  the  cancellation 
of  a  written  instrument  and  to  prevent  an  action  at  law  being 
brought  on  it,  cannot  be  maintained  unless  some  special  circum- 
stance exists  establishing  the  necessity  of  a  resort  to  equity  to 
prevent  an  injury,  which  equity  alone  is  competent  to  avert,  and 
it  is  not  enough  that  a  defense  exists  as  against  the  instrument  or 
that  evidence  may  be  lost.  This  rule  was  applied  to  an  action  to 
procure  the  cancellation  of  an  insurance  policy  which  the  com- 
plaint alleged  to  have  been  procured  by  fraud  between  plaintiff's 
agent  and  the  insured,  and  the  complaint  also  alleging  the  appre- 
hension that  by  collusion  with  the  agent  the  company  would  not 
have  an  opportunity  to  defend  an  action  brought  on  the  policy, 
or  that  such  an  action  would  be  delayed  until  the  evidence  of  fraud 
and  conspiracy  should  be  lost.39  But  in  a  recent  case  in  Michigan 
it  has  been  decided  that  a  bill  may  be  maintained  to  restrain  an 
action  on  a  life  insurance  policy  and  praying  for  its  cancellation 
on  the  ground  that  there  was  fraud  in  the  application  and  that  the 
insured  committed  suicide.40  But  it  is  held  that  an  action  of 
ejectment  will  not  be  enjoined  on  the  ground  of  a  fraudulent  alter- 
ation in  the  deed  under  which  the  plaintiff  claims  and  of  the  record 
thereof.41 

§  551.  Enjoining  actions  on  notes. — An  injunction  will  issue 
to  restrain  the  collection  of  notes  included  in  a  settlement  of  ac- 
counts previously  had  between  the  parties,  but  will  be  dissolved 

37.  Becker  v.  Church,   115  N.  Y.  39.  Globe  Life  Ins.  Co.  v.  Reals, 
562,  22  N.  E.  748.                                          79   N.   Y.  202.      And   see   Fowler   v. 

38.  Henwood  v.  Jarvis,  27  N.   J.       Palmer,  62  N.  Y.  533. 

Eq.  247.     And  see  Forrester  v.  Wil-  40.   Fidelity    Mut.     L.    I.    Co.   v. 

son,  1  Duer,  624;  Duigan  v.  Hogan,  Blain,  144  Mich.  218,  107  N.  W.  877. 

1    Bosw.   645;    Bean   v.   Pettingill,   2  41.  Wilson  v.  Miller    (Ala.  1905), 

Abb.  Pr.    (N.  S.)   58.  39  So.  178. 

849 
54 


§551 


Staying  Actions  and  Suits. 


on  a  failure  to  show  that  the  notes  were  so  included.42  And  it  is 
held  that  an  action  against  an  endorser  of  a  note  may  be  enjoined 
where  the  making  of  the  endorsement  was  a  mistake  of  fact.43  And 
whore  a  court  of  equity  may  decree  a  note  which  is  void  for  want  of 
consideration  to  be  delivered  up  to  be  canceled,  it  may  perpetually 
enjoin  an  action  at  law  to  be  brought  to  enforce  it.44  But  an  act  >n 
on  a  note  exchanged  for  another  will  not  be  enjoined  for  failure 
of  consideration,  since  the  one  promise  is  a  good  consideration 
for  the  other.45  Nor  on  the  ground  that  the  maker  was  insolvent 
at  the  time  the  suit  on  the  note  was  instituted.40  And  an  injunc- 
tion will  not  be  granted  to  restrain  threatened  actions  at  law  on 
promissory  notes,  where  the  defense  claimed  thereto  is  a  defenso 
at  law,  nor  where  reciprocal  demands  exist  between  the  parties, 
which  may  be  offset  or  counterclaimed,47  for  in  such  a  case  the 
plaintiff  in  the  action  at  law  has  a  constitutional  right  to  a  triid 
by  jury,  of  which  he  is  to  be  deprived  only  in  very  exceptional 


42.  Melcher  v.  Exchange  Bank, 
85  Mo.  3G2. 

43.  King  v.  Hart,  110  III.  App. 
33.  Compare  Bryan  v.  Windsor,  99 
Ga.   176,  25  S.   E.  2G8. 

44.  Metier  v.  Metier,  18  N.  J.  Eq. 
270,  per  Chancellor:  "In  caaea 
where  the  instrument  in  on  its  face 
valid,  and  especially  if  negotiable, 
the  jurisdiction  of  the  court  is 
founded  upon  the  principle  adopted 
in  other  cases  in  bills  quia  limct, 
and  is  now  settled  by  authority." 
iSee,  also,  Bryan  v.  Windsor,  99  Ga. 
176,  25  S.  E.  268;  Minshaw  v.  Jor- 
dan, 3  Brown,  Ch.  17;  Newman  v. 
Milner,  2  Ves.  483;  Bromley  v.  Hol- 
land, 7  Ves.  3;  Jarvis  v.  White,  7 
Ves.  413;  Jackman  v.  Mitchell,  13 
Ves.  581  ;  Wynne  v.  Callander,  1 
Russ.  293;  Peirsoll  v.  Elliott,  0  Pet. 
(U.  S.)  95,  8  L.  Ed.  332;  Hamilton 
t.  Cummings.  1  Johns.  Ch.  (N.  Y.) 
520.  Compare  House  v.  Oliver,  123 
Ga.  784,  51  S.  E.  722. 

45.  Gilbert  v.  Duncan,  29  N.  J. 
L.    145,    529;    Cameron    v.    Chappell, 


24  Wend.   (N.  V.)   94;   Davis  v.  Me- 
I  toady,    17  X.   V.  232. 

46.  Savage  v.  Ball.  17  N.  J.  Eq. 
142. 

47.  American  Water-Works  Co.  v. 
Venner,  83  Hun  (N.  Y.),  632,  18  \ 
Y.  Supp.  379. 

Where  one  of  the  complain- 
ants, who  were  partners,  gave  hit 
individual  notes  to  a  firm  debtor,  fo? 
payments  to  him  individually  made 
by  the  latter,  who  claimed  that  he 
owed  the  firm  nothing,  under  an  ar 
rangement  whereby  the  notes  wer^ 
to  be  held  by  the  debtor  against  the 
individual  partner  in  case,  on  final 
settlement,  nothing  was  found  due 
by  him  to  the  firm,  it  was  held,  thai 
the  firm  could  not  enjoin  a  third  per- 
son, who  held  the  notes,  from  bring 
ing  an  action  thereon,  as  the  firm's 
remedy  was  at  law  by  way  of  set-off. 
and  there  was  uo  mutuality  of  con 
tract  between  the  parties  to  such 
suit.  Dewey  v.  Billings,  76  Mich 
89;  42  N.  W.  1077. 


850 


Staying  Actions  and  Suits.  §§  552,  553 

cases.48  And  proceedings  at  law  upon  a  note  in  the  hands  of  a 
holder  in  good  faith  and  for  a  valuable  consideration  will  not  be 
enjoined  on  the  ground  of  fraudulent  representations  made  by 
the  payee  to  the  maker/9 

§  552.  Action  at  law  not  enjoined  at  instance  of  third  persons. 
— Where  both  parties  to  an  action  at  law  are  content  with  the 
jurisdiction,  and  desire  it  to  proceed,  a  court  of  equity  will  not 
ordinarily  enjoin  it  at  the  instance  of  third  persons,  as,  if  it 
should  result  in  a  collusive  judgment,  such  judgment  will  be  as- 
sailable whenever  it  may  come  into  conflict  with  the  rights  of  third 
persons.50  So  a  court  of  equity  has  no  jurisdiction  to  enjoin  pro- 
ceedings on  a  mandamus  where  the  parties  seeking  redress  by  such 
proceedings  are  not  the  plaintiffs  in  equity.51  And  a  stay  of  pro- 
ceedings in  one  action  until  the  determination  of  another  pending 
in  another  court  will  not  be  granted  when  the  party  against  whom 
the  stay  is  sought  is  neither  a  party  or  privy  to  such  other  action, 
and  will  not  be  bound  by  an  adjudication  therein.52 

§  553.  Statutory  requisites ;  jurisdiction ;  damages. — In  Vir- 
ginia it  has  been  decided  that  under  the  Code  an  injunction  to  any 
judgment  or  proceeding  must  be  applied  for  in  the  county  in 
which  the  judgment  is  rendered,  or  the  proceeding  is  taking  place. 

48.  Allerton  v.  Belden,  49  N.  Y.  be  enjoined  at  the  instance  of  third 
373;  Fowler  v.  Palmer,  62  N.  Y.  533.  persons  without  very  imperative  rea- 

49.  Dougherty  v.  Scudder,  17  N.  sons.  .  .  .  The  apprehended  judg- 
J.  Eq.  248.  ments    at   law    will,    if    collusive,   be 

50.  Smith  v.  Cuyler,  78  Ga.  654,  harmless  to  these  complainants,  be- 
3  S.  E.  406,  per  Bleckley,  C.  J.:  cause  if  collusive  they  can  be  at- 
"  To   carry   on   such   litigation   is   to  tached   everywhere." 

play  a  sort  of  comedy,  but  we  cannot  See,  also,  Campbell    v.    Bush,   112 

permit   these    new    parties  to   inter-  Ga.,    737,    38     S.     E.     50;     Aaron  v. 

vene  and  convert  it  into   a  tragedy.  Baum,  30  N.  Y.  Super.  Ct.   (7  Rob.) 

Let   the   wife   plaintiff   and   the  hus-  340. 

band     defendant     coquette     at     will.  51.  Finegan  v.  City  of  Fernandina, 

There  is  nothing  serious  in  the  out-  18  Fla.  127. 

come  and   it    should    abide  the  gen-  52.    Dolbeer    v.    Stout,    139   N.    Y. 

eral  rule,  that  where  both  parties  de-  486,  34  N.  E.  1102. 

sire  the  action  to  proceed  it  will  not 

851 


$554  Staying  A<  rroNa  turn  Sura. 

Thus,  an  injunction  granted  to  enjoin  condemnation  proceedings 
instituted  in  another  county,  was  dissolved.53  In  New  Jersey  it 
has  been  decided  that  a  provision  of  the  chancery  act  is  peremp- 
tory, and  prohibits  the  issuing  of  an  injunction  to  restrain  legal 
proceedings,  alter  verdict  or  judgment,  at  the  instance  of  defend- 
ant therein,  unless  the  money  be  paid  into  court,  or  a  bond  given 
according  to  the  statutory  requirement,  and  a  temporary  injunc- 
tion is  within  this  statutory  prohibition.54  In  Mississippi  a  Code 
provision  that  five  per  cent,  damages  shall  be  allowed  on  the  dis- 
solution of  an  injunction  "to  stay  sales  under  deeds  of  trust  or 
mortgages  with  power  of  sale,"  is  held  not  to  authorize  the  allow- 
ance of  such  damages  on  the  dissolution  of  an  injunction  to  restrain 
the  confirmation  of  the  sale  of  land  made  under  a  decree  of  fore- 
closure of  a  trust  deed,  as  the  provision  has  reference  only  to  an 
injunction  against  the  exercise  of  the  power  of  sale  by  the  donee 
of  the  power  proceeding  in  pais.55 

§  554.  Action  at  law  not  enjoined  unless  shown  to  be  neces- 
sary.— Where  the  complaint,  filed  to  have  a  deed  absolute  in  form 
declared  a  mortgage,  and  to  enjoin,  pending  the  decision,  an  action 
at  law  for  possession  of  the  premises,  does  not  show  that  plaintiff 
cannot,  without  the  injunction,  obtain  full  redress  for  any  wrong 
he  may  suffer  from  the  action,  or  that  the  injunction  is  necessary 
for  his  protection  in  the  event  of  his  success  in  the  suit,  it  is 
proper  to  dissolve  the  preliminary  injunction  on  the  presentation 
of  a  sworn  answer  denying  the  allegations  of  the  complaint.58    And 

5,3.  Norfolk  &  W.  R.  Co.  v.  Postal  Marlatt  v.  Perrine,  17  N.  J.  Eq.  49." 

Tel.  Co.,  88  Va.  932,  14  S.  E.  689.  55.  Fox  v.  Miller,  7  Miss.  598,  14 

54.  Phillips  v.  Pullen,  45  N.  J.  Eq.  So.  145. 

157,  16  Atl.  915,  per  Beasley,  C.  J.:  56.  Weems  v.  Roberts,  96  Ala.  378, 

"As    long    ago    as    the    year     1834,  11    So.    434.      And    see    Harrison   v. 

Vroom.   Ch.,   declared    the    provision  Yerby,  87  Ala.  185,  6  So.  3.    A  court 

was   peremptory,   and   enforced   it   in  of  equity  will  not  entertain  a  suit  to 

that  sense.    Morris  Canal  Co.  v.  Bart-  enjoin  common-law  proceedings  which 

lett,  3  N.  J.  Eq.  9;  and  thirty  years  are  void  for  want  of  jurisdiction  in 

after,  Greene,  Ch.,  pursued  the  same  the  common-law  tribunal  before  which 

course,  saying,  '  There  is  no  authority  they  are  being  prosecuted,  the  injured 

to   issue    an    injunction,    except   the  party  having  an  adequate  remedy  at 

terms     prescribed     by     the     statute.'  law,   in   trespass   against   the  wrong- 

852 


Staying  Actions  and  Suits. 


555 


a  party  cannot  be  enjoined  from  prosecuting  an  action  at  law,  on 
the  ground  that  it  is  trifling  or  without  merits;57  or  unless  the 
party  applying  for  the  injunction  shows  that  he  will  be  appreciably 
injured  by  the  action  which  he  seeks  to  restrain.58  But  a  legal 
remedy  which  a  party  is  compelled  to  go  into  a  foreign  jurisdiction 
in  order  to  avail  himself  of,  is  not  to  be  regarded  as  an  adequate 
legal  remedy  so  as  to  deprive  domestic  courts  of  the  power  of 
affording  injunctive  relief.59 

§  555.  No  injunction  where  there  is  remedy  by  appeal.— It  is 

a  general  rule  that  where  a  party  has  an  adequate  remedy  by  ap- 
peal an  injunction  will  not  be  granted.60  So  a  referee  to  take  testi- 
mony will  not  be  enjoined  from  acting,  on  the  ground  that  his 


doer.  St.  Louis  T.  M.  &  S.  Ry.  Co.  v. 
Reynolds,  89  Mo.  140,  1  S.  W.  208. 
See,  also,  Sayre  v.  Tompkins,  23  Mo. 
443;  Deane  v.  Todd,  22  Mo.  90;  First 
Nat.  Bank  v.  Meredith,  44  Mo.  500. 

See  §§  305-J06  herein  as  to  dissolv- 
ing injunction  on  coming  in  of  an- 
swer. 

57.  Butchers  Benev.  Assoc,  v.  Cut- 
ler, 26  La.  Ann.  500. 

58.  Lambert  v.  Lambert,  5  Ir.  Eq. 

339. 

59.  Stanton    v.    Embry,    46    Conn. 

595. 

60.  Arkansas.— Hart  v.  The  Life 
Association,  54  Ala.  495. 

Arkansas.— Shaul  v.  Duprey,  48 
Ark.  331. 

Illinois.— Palmer  v.  Gardner,  77 
111.  143. 

Indiana.— Sims  v.  City  of  Frank- 
fort, 79  Ind.  446. 

Iwoa.— Kinney  v.  Howard  (Iowa, 
1907),  HO  N.  W.  282. 

Louisiana. — Chaffe  v.  Du  Bose,  36 
La.  Ann.  257. 

Neic  York.— Wright  v.  Fleming,  12 
Hun,  469;  Wordsworth  v.  Lyon,  5 
How.  Prac.  463. 

Pennsylvania. — Appeal  of  Brour,  66 


Pa.   St.     155;     Wolf    v.    Scheiffer,  2 
Brewst.  563. 

Texas. — Manning  v.  Hunt,  36  Tex. 
118. 

See  also  §  23  herein. 
Where    effect   of    appeal    is   to 
vacate       judgment.  —  A       person 
brought  an  action  before  a  justice  in 
West    Virginia,    against    one    Evans, 
and  final  judgment  was  rendered  for 
defendant,  and  while  it  remained  in 
full  force,   the   plaintiff  assigned  his 
claim  to  a  person  in  Ohio,  who  sued 
on  it  before  a  justice  there,  and  re- 
covered   judgment;     the    Ohio    plain- 
tiff then  assigned  his  judgment,  pend- 
ing an  appeal  from  it  to  the  Court  of 
Common  Pleas  in  Ohio,  to  a  person  in 
West  Virginia,  who  again  sued  Evans 
on  the  judgment.      It  was   held   that 
Evans  was  not  entitled  to  an  injunc- 
tion  to   restrain    the    action    on  the 
judgment,   because   the   effect   of   the 
appeal  from  the  Ohio   justice's  judg- 
ment to  the  Court  of  Common  Pleas 
there  was  not  merely  to  suspend  it, 
but  wholly  to  vacate  it,  and  this  was 
a  valid  defense  in  the  action  at  law 
on  the  judgment.    Evans  v.  Taylor,  28 
W.  Va.  184,  per  Snyder,  J.:     "  In  the 


S53 


§  558 


Staying  Actions  and  Surra. 


appointment  was  not  authorized,  as  there  is  an  adequate  remedy 
bj  appeal.61  And  an  action  will  not  be  enjoined  because  of  tho 
improper  exclusion  of  evidence  therein,  since  the  proper  remedy 
in  such  case  is  by  appeal.62  And  summary  proceedings  will  not 
be  enjoined  where  the  rights  of  parties  can  be  fully  protected  by 
appeal  or  certiorari.63     And  the  Supreme  Court  will  not  enjoin 


cause  at  bar  the  plaintiff's  bill  not 
only  shows  that  he  had  a  good  legal 
defense  at  law  to  the  claim  asserted 
against  him,  but  that  such  defense 
may  still  l><'  made  available  by  him 
at  law.  The  action,  which  he  9ceks 
to  enjoin  in  this  suit,  he  alleges,  is 
founded  upon  the  judgment  of  a  jus- 
tice of  the  State  of  Ohio,  which  has 
been  appealed  from,  and  stands  upon 
an  appeal  in  the  Court  of  Common 
Pleas  of  Belmont  county,  in  said 
State.  According  to  the  laws  of  the 
State  of  Ohio,  the  effect  of  an  appeal 
from  the  judgment  of  a  justice  is  to 
stay  all  further  proceedings  on  the 
judgment  before  the  justice.  .  . 
An  appeal  in  such  a  case  i9  very  dif- 
ferent in  its  etl'ect  from  a  proceeding 
which  seeks  to  review  a  judgment  by 
writ  of  error.  In  the  latter  case  the 
judgment  is  merely  suspended,  but 
in  the  former  the  judgment  is  va- 
cated and  made  ineffectual  for  any 
purpose,  the  judgment  in  legal  con- 
struction no  longer  remains  in  force 
and  cannot  be  the  foundation  of  a  new 
action.  Campbell  v.  Howard,  5  Mass. 
37C;  Paine  v.  Cowdin,  17  Pick.  142. 
.  .  .  If,  however,  no  appeal  had 
been  taken  from  the  Ohio  judgment, 
and  the  plaintiff,  Evans,  has  a  valid 
defense  to  the  claims,  on  which  said 
judgment  was  recovered,  he  would 
still  not  be  entitled  to  relief  in  equity, 
because  by  the  statutes  of  the  State 
of  Ohio  he  could  have  taken  such  an 
appeal   as   a   matter   of   right,   which 


would  have  given  him  an  adeqn  il- 
legal remedy,  and  if  he,  by  his  negli 
gence,  failed  to  avail  himself  of  such 
remedy,  he  i9  for  that  reason  without 
remedy  in  a  court  of  equity.  It  is  a 
moral  wrong  and  in  some  cases  a 
fraud  for  any  person  to  resort  to  the. 
courts  to  enforce  the  payment  of  an 
unfounded  or  unjust  claim,  but  it  is 
not  such  a  wrong  or  fraud  that  a 
court  of  equity  will  enjoin.  In  nearly 
all  contested  claims  the  defendant 
disputes  the  justice  of  the  plaintiff's 
demand.  If,  therefore,  a  court  of 
equity  could  be  called  upon  to  inter- 
fere, and  restrain  the  plaintiff  from 
prosecuting  his  claim  in  a  court  of 
law,  because  in  the  estimation  of  the 
defendant  such  claim  was  unjust  and 
unfounded,  very  few  cases  at  law 
could  escape  such  interference.  It  is 
no  greater  wrong  or  fraud  for  a  party 
to  sue  on  a  claim  that  had  been  ad- 
judged invalid  in  a  previous  suit  than 
it  would  be  for  a  plaintiff  to  sue  on  a 
claim  which  ne  knew  was  unjust,  or 
which  he  knew  could  be  successfully 
defended." 

61.  Shoemaker  v.  Axtell,  78  Ind. 
561. 

62.  Wright  v.  Fleming,  12  Hun, 
469. 

63.  Bliss  v.  Murray,  7  N.  Y  Supp. 
917;  Armstrong  v.  Cummings,  20 
Hun  (N.  Y.),  313;  Jessurun  v. 
Mackie,  24  Hun   (N.  Y.),  624. 

See  §  579  as  to  enjoining  sum- 
mary proceedings. 


854 


Staying  Actions  and  Suits.  §§  556,  557 

the  action  of  the  court  below  as  to  a  matter  concerning  which, 
were  an  appeal  bond  filed,  the  court  below  would  be  powerless  to 
act,  no  appeal  bond  having  been  filed.64 

§556.  Same  subject;  where  no  jurisdiction. — Where  a  court 
has  no  jurisdiction  of  a  matter  before  it  a  court  of  equity  will  not 
enjoin  the  proceedings  for  in  such  a  case  a  judgment  rendered  will 
be  void,  as  will  also  an  execution  issued  thereon  and  in  such  a  case 
the  remedy  at  law  is  ample  and  adequate.65  So  it  has  been  decided 
that  an  appeal  from  the  highway  commissioners  to  the  supervisors 
will  not  be  enjoined  by  a  court  of  equity  where  it  appears  both 
from  the  facts  alleged  in  the  bill  and  admitted  by  demurrer  there 
is  no  jurisdiction  in  the  supervisors  as  in  such  a  case  an  order 
made  by  them  would  be  void  and  could  be  resisted  in  any  proceed- 
ing.66 But  in  New  York  it  has  been  decided  that  though  there 
has  been  much  discussion  of  the  question  as  to  what  cases  injunc- 
tion will  lie  to  restrain  proceedings  for  forcible  entry  and  detainer 
under  the  Code,67  such  provision  of  the  statute  does  not  affect  the 
power  of  the  courts  to  restrain  such  proceedings  when  void  for 
want  of  jurisdiction.63 

§  557.  No  injunction  where  remedy  by  certiorari. — It  is  a 
general  rule  that  an  injunction  will  not  be  granted  where  there  is 
an  adequate  remedy  by  certiorari.69  So  where  an  owner  of  land 
condemned  for  a  street,  having  knowledge  of  the  action  of  the  city 
council,  could  have  protected  his  interests  by  certiorari,  and  being 
made  a  party  to  the  condemnation  proceedings,  could  have  defended 
on  the  ground  that  the  proceedings  were  not  authorized  by  the 
action  of  the  council,  he  is  not  entitled  to  have  the  opening  of  the 
street  enjoined  for  defects  in  the  proceedings  of  the  council.70 

64.  Churchill   v.   Martin,  65   Tex.  67.  Code  Civ.  Proc,  §  2265. 

367.  68.  Schneider  v.  Leizman,  57  Hun 

65.  St.   Louis,  Iron  Mt.   &  S.   R.       (N.  Y.),  561,  11  N.  Y  Supp.  434. 
Co.   v.   Reynolds,    89   Mo.    146,    1    S.  69.  See  §  29  herein. 

W.  208;  Bean  v.  Pettengill,  30  N.  Y.  70.  Rockwell  v.  Bowers,  88  Iowa, 

Super.  Ct.    (7  Rob.)    7.  88,  55  N.  W.  1,  per  Robinson,  C.  J.: 

66.  Gray  v.   Jones,    178   111.    169,  "  It  is  a  well-established  rule  of  law, 
52  N.  E.  941.  that  courts  of  equity  will  not  afford 

855 


Stating  A<  nova  a. 


§  558.  The  effect  of  enjoining  action  at  law. — In  Tennessee, 
the  better  practice  was  considered  to  be,  that  an  injunction  re- 
straining an  action  at  law  should  not  be  granted,  except  upon  the 
condition  of  the  defendant's  agreeing  to  confers  judgment,  or  of 
allowing  the  plaintiff  to  proceed  to  judgment.'1  Bat,  if  granted 
without  qualification,  an  injunction  against  further  proceedings  at 
law,  mu3t  be  literally  obeyed.     Thus,  where  pending  an  appeal 


a  party  aid,  to  protect  big  rights, 
when  the  remedy  obtainable  in  tha 
courts  of  law  is  plain,  adequate,  and 
speedy.  When  there  is  no  appeal,  or 
other  special  means  for  obtaining  re- 
lief from  the  acts  of  an  incorporated 
city  or  town  in  laying  out,  opening, 
or  extending  streets,  such  acts  may 
be  reviewed  and  corrected  by  cer- 
tiorari, and  courts  of  equity  will  not 
interfere.  2  Dill.  Mun.  Corp.,  §§ 
470,  727,  740.  Cities  and  incorpo- 
rated towns  have  power  to  open,  va- 
cate, and  extend  and  establish  streets. 
Code,  §  4G4.  It  was  said  in  Stuben- 
rauch  v.  Neyenesch,  54  Iowa,  567,  7 
Js.  W.  1,  that  certiorari  is  a  proper 
remedy  to  test  the  right  of  a  city 
council  to  vacate  a  street;  and,  in 
effect,  that  a  court  of  equity  will  not 
interfere  to  prevent  such  action,  for 
the  reason  that  the  remedy  by  cer- 
tiorari is  full  and  complete.  The 
rule  of  law,  as  thus  announced,  is  ap- 
plicable to  this  case.  The  plaintiff 
could  have  tested  the  power  of  the 
town  council  to  extend  the  street  in 
question  in  the  manner  attempted,  by 
certiorari,  and  would  not  have  been 
entitled  to  an  injunction  to  prevent 
the  adoption  of  the  resolution.  It  is 
said,  however,  that,  if  the  council 
had  no  power  to  open  the  street  by 
resolution,  its  act  in  attempting  to 
do  so  was  void,  and  imposed  no  obli- 
gation upon  plaintiff  to  test  it  by 
direct  proceedings,  and  that  he  re- 
tained the  right  to  resist  the  opening 


of  the  street  by  an  independent  ac- 
tion. In  answer  to  tii.it  claim  it  may 
be  said  that  appellant  knew  of  the 
action  of  the  council  in  due  tine,  ami 
could  have  protected  !<i>  Intel 
fully  by  certiorari  proceedii 
Moreover  he  was  made  a  party  to, 
and  was  served  with  notioe  of,  1 1  *•  - 
condemnation  proceedings  in  the  Die 
trict  Court,  ii  those  proceeding! 
were  not  authorized  by  the  action  the 
council  had  taken,  the  fact  could 
have  been  pleaded  and  shown  in  d< 
fense.  It  is  tun-  sections  476,  477. 
of  the  Code,  under  which  such  pro- 
ceedings were  had,  do  not,  in  terms, 
authorize  an  injuiry  as  to  the  valid- 
ity of  the  proceedings;  but  they  do 
provide  for  the  ascertaining  of  the 
compensation  to  be  paid,  by  a  mode 
of  proceedure  as  in  an  action  at  law, 
so  far  as  applicable,  for  the  settling 
of  the  rights  of  claimants  of  the 
property  to  be  condemned,  and  for 
the  delivery  of  the  possession  of  the 
property.  It  necessarily  follows  that 
the  rights  of  the  parties  to  such  a 
proceeding  may  be  asserted  therein 
by  suitable  pleadings,  and  settled  by 
a  trial,  and  an  order  or  judgment  of 
the  court.  See  Railway  Co.  v.  Don- 
nell,  77  Iowa,  221,  42  N.  W.  176." 

71.  Chadwell  v.  Jordan,  2  Tenn. 
Ch.  635 ;  Mathews  v.  Douglass,  Cooke 
(Tenn.),  136;  Warwick  v.  Norvell, 
1  Leigh,  96;  Justice  v.  Scott,  4  Ired. 
Eq.  (N.  C.)  108. 


856 


Stayiuo  Actions  axd  Suits. 


§558a 


from  a  justice's  judgment  against  an  administrator,  he  obtained 
an  injunction  restraining  the  appellee  from  further  prosecuting 
his  suit,  hut  the  appellee  proceeded  to  have  justice's  judgment 
affirmed,  such  judgment  was  perpetually  enjoined  on  petition.72 
And  though  an  action  at  law  be  at  issue,  and  ready  for  trial,  the 
plaintiff  who  has  been  enjoined  cannot  proceed  to  trial  and  judg- 
ment on  the  ground  of  saving  time  and  expense.73  And  if  a  party, 
who  has  been  enjoined  from  further  prosecuting  proceedings  at 
law,  violates  the  injunction,  he  may  be  compelled  to  relinquish 
all  advantage  of  any  proceedings  so  taken  by  him  subsequent  to 
the  services  of  the  injunction.74  Where  an  injunction,  restraining 
a  suit  at  law  is  dissolved,  the  equity  court  will  leave  the  parties 
to  proceed  at  law.75 

§  558a.  To  protect  persons  acting  under  orders  of  court. — 
In   an   early  case   in  New   York   the   doctrine   is    affirmed   that 


72.     Patterson  v.  Gordon,  3  Tenn. 
Ch.  18,  per  Cooper,  Ch.:     "  It  is  next 
insisted   that   the   suing  out  the   in- 
junction under  this  petition  was  a  re- 
lease of  errors    in   the  judgment  at 
law,  which,  if  I  understand  the  argu- 
ment,    precludes     this     court     from 
granting  the    relief   asked.      Code,    § 
3107;  Overton  v.  Perkins,  Mart  &  Y. 
368;    Henly    v.    Robertson,    4    Yerg. 
172.    The  argument  seems  to  be,  that 
if  the  judgment  was  wrongfully  ob- 
tained, the   suing  out  an  injunction 
cures  the  wrong.     But  section  3107, 
of  the  Code,  only  releases  such  errors 
as   might    be    reached    by  appellate 
proceedings   to   a    higher  court,  and 
the  suing  out  of  the  injunction  would 
be    a    good     plea    in    the   Appellate 
Court,  to  bar  a  revision  in  that  court. 
The  object  of  the  act  was  to  prevent 
proceedings  at  law  and  in  equity  at 
the    same    time,    touching   the    same 
matter.      And    this   end    equity   had 
previously  attained  without  statute, 
by  compelling  the  party  who  comes 


into  chancery  for  relief,  to  elect  in 
which  court  he  will  proceed.  Cocke  v. 
Dotson,  1  Tenn.  169;  Cockerell  v. 
Cholmeley,  1  Russ.  &  M.  418;  Webb 
v.  Williams,  Walk.  Ch.  (Mich.)  452. 
It  was  never  intended  to  deprive  a 
party  who  sues  out  an  injunction,  of 
all  relief,  either  at  law  or  in  equity. 
He  loses  his  remedy,  if  he  have  any 
at  law,  but  is  entitled  to  his  equit- 
able relief." 

73.  Hutchinson  v.  Hutchinson,  1 
Houst.    (Del.)    613. 

If  proceedings  at  law  against 
a  principal  are  stayed,  they  are 
stayed  also  against  his  surety  or 
special  bail.  Patterson  v.  Gordon,  3 
Tenn.  Ch.  18;  Webster  v.  Chew,  3 
Har.  &  McH.   (Md.)    123. 

74.  Piatt  v.  Woodruff,  61  N.  Y. 
378,  382.     And  see  section  281,  ante. 

75.  Powers  v.  Ashley,  8  Mo.  299. 

This  is  the  rnle  unless  a  dis- 
covery is  sought  for  to  aid  a  defense 
at  law.  Ham  v.  Schuyler,  2  Johns. 
Ch.   (N.  Y.)    140. 


857 


§  559  Staying  Actions  and  Suits. 

wherever  the.  jurisdiction  of  the  chancery  court,  the  title  of  its 
officers,  or  the  validity  of  its  process  or  its  orders  is  disputed  or 
attempted  to  be  drawn  in  question,  by  a  suit  instituted  in  another 
court  against  those  who  are  acting  under  the  orders  or  the  process 
of  the  court  of  chancery,  it  is  bound  to  interfere  for  their  protec- 
tion and  to  restrain  the  prosecution  of  the  suit.'6  And  a  similar 
doctrine  is  asserted  in  other  cases.77 

§  559.  Enjoining  actions  against  receivers. — The  court  having 
jurisdiction  of  a  receiver,  and  the  property  in  his  possession,  may 
enjoin  an  action  brought  against  him  without  the  court's  per- 
mission. So  in  a  recent  case  in  Florida  it  is  decided  that  where- 
a  receiver  is  appointed  by  the  judge  of  one  judicial  district  in  a 
cause  pending  before  him  the  judge  of  another  judicial  district  is 
without  authority  to  grant  an  injunction  order  in  a  cause  pending 
in  his  circuit  restraining  the  receiver  from  applying  to  the  judge 
whose  receiver  he  is  for  a  writ  of  restitution  of  possession  of  real 
estate  or  for  any  other  remedial  process  affecting  the  property  in 
his  custody  as  receiver.78  So  where  land  in  dispute  was  in  the 
hands  of  a  receiver,  and  one  of  the  litigants  made  an  effort  to  dis- 
train for  rent  against  another,  this  was  held  an  interference  with 
the  property  which  was  properly  enjoined.79  And  where  a  receiver 
of  a  national  bank  had  in  his  possession  bonds  pledged  to  the  bank 
for  a  debt,  and  obtained  an  order  from  the  Federal  Circuit  Court 
to  sell  them,  it  was  held  that  the  court  had  jurisdiction  to  enjoin, 
and  would  enjoin  a  citizen  of  the  district  from  prosecuting  a  suit 
in  Canada  against  the  receiver  to  recover  the  bonds.80  And  where 
a  State  court  has  jurisdiction  of  the  parties,  and  has  appointed  a 
receiver  of  the  property  in  dispute,  it  can  enjoin  creditors  from 

76.  Mackay  v.  Blackett,  9  Paige  against  a  party  who  sues  a  receiver 
(N.  Y. )     437.  without  leave  of  court,  is  to  punish 

77.  Turner  v.  Breeden.  2  Lea  him  as  in  contempt  of  court.  De- 
(Tenn.),  713;  Peck  v.  Crane,  25  Groot  v.  Jay.  30  Barb.  (N.  Y.)  483. 
■yt   146  80.  Hendee  v.  Connecticut  &  Pas- 

78.  Ray  v.  Trice  (Fla.  1907),  42  sumpsic  Rivers  R.  R.  Co.,  23  Blatch. 
So.  901.  453;     26     Fed.     677.       See     Central 

79.  Marshall  v.  Lockett,  76  Ga.  Trust  Co.  v.  East  Tenn.  R.  Co.,  59 
289.    See  §  76  ante.  Fed.  523. 

The     more     common     remedy 

858 


Staying  Actions  and  Suits.  §  560 

prosecuting  libels  against  the  property  in  a  Federal  court.81  And 
condemnation  proceedings  against  property  in  a  receiver's  hands, 
may  be  restrained.82  Again,  where  a  receiver  distrained  for  rent, 
and  defendant  brought  an  action  for  trespass,  alleging  that  the 
receiver  had  distrained  on  lands  in  the  possession  of  defendant, 
and  not  those  over  which  he  was  appointed,  the  court  restrained 
the  action  for  trespass  and  granted  a  reference  to  the  master 
to  determine  the  injury,  if  any.83  But  an  action  against 
a  receiver  should  not  be  restrained  on  the  mere  ground 
that  a  former  judgment  has  disposed  of  the  matters  in- 
volved in  the  action,  but  the  receiver  should  be  left  to 
set  up  that  as  a  defense.84  And  where  an  order  appointing  a 
receiver  to  a  corporation  restrains  all  actions  against  the  corpora- 
tion, a  motion  by  a  creditor  to  vacate  the  order  as  to  him,  so  as  to 
enable  him  to  perfect  a  judgment  against  the  corporation,  should 
not  be  granted  merely  on  the  ground  that  the  corporation  bought 
goods  from  him  when  insolvent,  without  any  showing  that  such 
creditor  was  entitled  to  perfect  his  judgment  in  preference  to 
other  creditors.85  As  before  seen,  a  court  of  equity  which  has 
appointed  a  receiver  of  lands  situated  in  another  State  or  jurisdic- 
tion, has  no  power  to  enjoin  a  citizen  of  such  jurisdiction  from 
levying  an  attachment  on  such  lands,  unless  he  is  a  party,  either 
in  person  or  by  representation,  to  the  litigation  in  which  the  re- 
ceiver was  appointed.86 

§  560.  As  to  arbitrators  and  awards. — An  arbitrator  may  be 
enjoined  from  acting  in  any  case  in  which  he  is,  in  the  opinion 
of  the  court,  unfit  or  incompetent  to  act.87    And  a  court  of  equity 

81.  In    re    Schuylers    Steam    Tovr  84.  Jay's  Case,  6  Abb.  Pr.  (N.  Y.) 
Boat  Co.,    136  N.  Y.    169..  32  N.   E.       293. 

623.     See  §  85  ante,  for  the  opinion  85.  Carson  v.  N.  Y.  Terminal  Ex- 

in  this  case.  press  Co.,  74  Hun    (N.  Y.),  536,  26 

82.  Tink  v.  Rundle,  10  Beav.  318.  N.  Y.  Supp.  639. 

83.  Parr  v.  Bell,  9  Ir.  Eq.  55.  And  86.  See  §  76  ante. 

see  Darley  v.  Nicholson,  2  Dr.  &  W.  87.  Beddow  v.  Beddow,  L.  R.  9  Ch. 

86;  Mackinnon  v.  Palmer,  7  Ir.  Eq.  D.  89,  per  Jessel,  M.  R.:     "One  of 

496;  Nugent  v.  Nugent,  7  Ir.  R.  Eq.  the  well-known  grounds  of  incompe- 

519.  tence  is  personal  interest.     If  in  the 

859 


§500 


JStayim;    A<   iii-.s   AM)  Sill.-. 


will  enjoin  an  action  at  law  upon  an  award  of  arbitrators  upon 
proof  that  after  the  hearing  of  both  parties  upon  their  respective 
claims  one  of  the  arbitrators  requested  and  they  all  received  a 
written  statement  from  one  of  the  parties  quite  different  from  that 
which  had  been  presented  at  the  hearing,  in  the  absence  of  tho 
other  party  and  without  his  consent,  though  the  arbitrators  swear 
that  the  statement  had  no  influence  on  the  award  and  there  is  no- 
imputation  of  fraud  upon  them;  for  such  conduct  on  their  part  is 
opposed  to  natural  equity  and  to  established  practice  and  to  the 
policy  of  the  law  with  regard  to  the  administration  of  justice.88 
Again,  the  rule  is  well  settled  that  an  award  cannot  be  sustained 
where  the  arbitrators  received  the  statements  of  one  party  or 
admitted  his  evidence  in  the  absence  of  the  other  party.89  And 
where  arbitrators  chosen  to  estimate  tho  quantity  of  lumber  which 
plaintiff  had  agreed  to  sell  to  defendants,  through  negligence  over- 
looked a  large  part  of  it,  the  plaintiff's  application  for  an  injunc- 
tion to  restrain  defendants  from  further  interfering  with  the 
lumber  and  for  general  relief  was  granted  on  his  allegations  of  the 
arbitrators'  fraud  or  gross  mistake.90    But  an  action  at  law  on  an 


course  of  the  arbitration  it  is  dis- 
covered by  one  of  the  parties  to 
"whom  it  was  at  first  unknown  that 
the  arbitrator  has  a  large  interest  in 
the  Bubject  matter  of  the  award,  it 
is  not  necessary  to  wait  for  the 
award  and  then  take  proceedings,  but 
the  party  may  come  to  have  the  ar- 
bitrator removed.  Again,  if  personal 
unfitness  has  arisen  from  perjury  or 
fraud,  it  is  clear  that  a  man  will  be 
•unsuitable  to  exercise  judicial  or 
^was-t-judicial  functions."  The  ar- 
bitrator was  enjoined. 

88.  Cleland  v.  Hedly,  5  R.  I.  163. 

89.  Walker  v.  Frobisher,  6  Vea. 
70;  Fetherstone  v.  Cooper,  9  Ves.  67; 
Harvey  v.  Shelton,  7  Beav.  455 ;  Dob- 
son  v.  Groves,  6  Ad.  &  El.  (N.  S.) 
637 ;  Plews  v.  Middleton,  6  Ad.  &  El. 
(N.  S.)  845;  Emery  v.  Owings,  7 
Gill.  (Md.)  488;  Strong  v.  Strong,  9 
Cush.  (Mass.)  560,  574. 


90.  In  Stubbings  v.  McGregor,  86 
Wis.  248,  50  N.  W.  841,  Pinney,  J., 
Baid:  "It  was  agreed  that  the  esti- 
mate of  the  parties  chosen  to  esti- 
mate the  amount  of  lumber  sold  by 
the  plaintiff  to  the  defendants  should 
be  conclusive,  and  the  estimate  made 
stands  substantially  upon  the  same 
grounds,  and  its  validity  is  to  be  de- 
termined by  the  same  principles  as 
are  applicable  to  an  award  of  arbi- 
trators. Their  decision  ought  not  to 
be  disturbed,  without  some  statement 
going  to  show  that  it  was  made  under 
a  mistake  or  was  not  honest.  Baasen 
v.  Baehr,  7  Wis.  516,  521;  Hudson  v. 
McCartney,  33  Wis.  332;  Early  v. 
Logging  Co.,  68  Wis.  112,  31  N.  W. 
714.  It  was  conceded  by  appellants' 
counsel  that,  for  fraud  or  gross  mis- 
take, the  estimate  in  question  might 
be  set  aside  or  disregarded.  In  order 
to  avoid  the  award  for  alleged  mis- 


860 


Staying  Actions  and  Suits. 


§  5G1 


award  will  not  be  enjoined  in  order  to  give  the  complainant  an 
opportunity  to  impeach  the  testimony  of  his  opponent's  witness  of 
the  object  of  whose  evidence  he  was  notified  beforehand.91  And  a 
party  may  lose  his  right  to  have  an  award  set  aside  by  not  making 
his  application  therefor  at  the  next  term  after  it  is  published.92 

§  561.  As  against  garnishees. — Where  issues  can  be  made  up 
and  tried  and  judgment  rendered  in  a  garnishee  suit,  which  sub- 
stantially has  the  same  legal  effect  as  any  other  judgment,  the 
garnishee  is  regarded  as  a  defendant,  and  as  such  may  be  enjoined 
in  cases  of  fraud.93  Aud  the  garnishee  may  be  restrained  from 
disposing  of  the  property  in  his  hands  to  the  injury  of  an  attaching 
creditor.94  And  it  has  been  held  in  some  jurisdictions  that  a  cred- 
itor who  has  attached  the  property  of  his  debtor  has  thereby 
acquired  a  sufficient  lien  on  such  property  to  entitle  him  to  file  a 
bill  in  equity  to  remove  from  it  any  fraudulent  incumbrance,*6 


take,  the  evidence  should  be  clear 
and  satisfactory.  The  mistake  to  be 
shown  must  be  of  some  material  fact, 
as  distinguished  from  mere  misjudg- 
ment,  and  not  of  a  trifling  or  compar- 
atively immaterial  character,  but  one 
affecting  in  an  important  or  consid- 
erable degree  the  substantial  rights 
of  the  party  complaining  of  it.  It 
satisfactorily  appears  in  this  case 
that  the  estimators  wholly  omitted  to 
estimate,  and  include  in  their  esti- 
mate of  the  amount  of  lumber  sold 
by  the  plaintiff  to  the  defendants, 
three  piles  of  lumber,  amounting  in 
all  to  about  85,000  feet,  which,  at  the 
contract  price  of  $11  per  thousand 
would  amount  to  $935.  One  of  these 
piles  was  omitted  by  mistake,  and 
the  other  two  because,  though  piled 
as  No.  3  lumber,  which  is  a  grade 
better  than  culls,  and  not  with  the 
piles  of  culls,  the  estimators  consid- 
ered and  decided  these  piles  in  fact  to 
be  culls,  and  not  lumber  sold  under 
the  contract.    A  partial  estimate  wa9 


not,  therefore,  a  valid  execution  of 
their  authority,  and  is  not  binding  on 
the  parties.  It  left  the  entire  amount 
practically  at  large — as  much  so  as  if 
no  submission  and  estimate  had  been 
made — and  wholly  failed  to  meet  the 
requirements  of  the  occasion,  namely, 
to  ascertain  and  determine  what 
amount  of  lumber  the  defendants 
were  to  pay  for  at  $11  per  thousand, 
under  the  contract  of  sale.  The  rule, 
undoubtedly,  is  that  the  failure  to 
pass  upon  all  the  matters  submitted 
is  fatal  to  the  whole  award,  render- 
ing it  void.  Morse,  Arb.  345,  and 
cases  in  note  1 ;  Canfield  v.  Insurance 
Co.,  55  Wis.  419,  426,  13  N.  W.  252." 

91.  Wood  worth  v.  Van  Buskerk, 
1  Johns.  Ch.  (N.  Y.)  432. 

92.  Smith  v.  Whitmore,  1  Hem.  ft 
M.  576. 

93.  Malley  v.  Altman,  14  Wis.  22. 
Compare  Reubens  v.  Joel,  13  N.  Y. 
488. 

94.  Almy  v.  Piatt,  16  Wis.  169. 

95.  Tappan   v.   Evans,    11    N.   H. 


861 


§5(32  Staying  Actions  and  Suits. 

but  the  more  general  rule  is  that  a  creditor  la  not  entitled  to  such 
equitable  relief  until  he  has  recovered  judgment  and  exhausted 
his  legal  remedies.9*  And  garnishment  proceedings  will  not  be 
enjoined  where  there  is  an  adequate  remedy  at  law,97  such  as  a 
complete  defense  thereto.58  So  the  transferee  of  the  property  of  a 
debtor,  which  was  alleged  to  have  been  fraudulently  disposed  of, 
cannot  maintain  a  bill  in  equity  to  restrain  the  enforcement  of  a 
garnishment  proceeding  at  law  by  a  creditor  of  such  a  debtor  pend- 
ing a  suit  in  equity  by  other  creditors  of  the  debtor  seeking  to  set 
aside  the  conveyance  and  to  subject  the  same  property  to  the  pay- 
ment of  their  demands."  In  proceedings  supplementary  to  execu- 
tion an  order  restraining  a  third  person  from  disposing  of  property 
of  the  debtor  cannot  be  made  until  such  third  person  has  been  made 
a  party  to  the  proceeding.1 

§  502.  Protecting  surety  where  creditor  has  collaterals. — 
Where  the  holder  of  a  note,  who  also  has  received  certain  collateral*? 
from  the  payee  to  secure  its  payment,  sues,  thereon  an  accommo- 
dation maker  who  as  to  the  payee  is  a  mere  surety,  such  maker 
cannot  enjoin  the  prosecution  of  the  action  pending  another  action 
to  determine  his  own  and  others'  rights  to  the  collaterals.2     Ordi- 

311;  Kittredge  v.  Emerson,  15  N.  H.  Montgomery.    116    Ala.    384,    22    So. 

227;    StonP   v.    Anderson,   26    N.    H.  497;   Teft  v.  Booth,  104  Ga.  590,  30 

506;   Hunt  v.  Field,  9  N.  J.  Eq.  36.  S.   E.  803. 

96.  Wiggins  v.  Armstrong,  2  99.  Chesapeake  Guano  Co.  v. 
Johns.  Ch.  (N.  Y.)  144;  Brinkerhoff  Montgomery.  116  Ala.  384,  22  So. 
v.  Brown,  4  Johns.  Ch.  (N.  Y.)   671;  497. 

McDerinutt   v.   Strong,  4  Johns.   Ch.  1.  King  v.  Tuska,  1  Duer  (N.  Y.). 

(N.    Y.)    687;    Neustadt   v.    Joel.    2  635. 

Duer   (N.  Y.),  530;  Reubens  v.  Joel,  2.  Koehler  v.  Farmers'  &  Drover^ 

13  N.  Y.  488;   Day  v.  Washburn,  24  Nat.  Bank  of  Somers,  117  N.  Y.  661. 

How.   (U.  S.)   352,  16  L.  Ed.  712.  22  N.  E.   1134,  aff'9  51  Hun,  418,  4 

97.  Sturges  v.  Jackson  (Miss.  N.  Y.  Supp.  232,  where  Daniels,  J.. 
1906).  40  So.  547,  so  holding  where  said:  "The  bank  had  the  right  to 
the  debtor  had  a  remedy  at  law  prosecute  the  maker  of  the  note  and 
either  on  the  indemnity  bond  to  the  recover  its  debt  of  him,  leaving  him 
sheriff  or  on  the  latter's  official  bond  to  avail  himself  of  the  protection 
for  a  wrongful  garnishment  of  his  which  could  be  afforded  by  the  appli- 
wages.  cation  of  the  collaterals  or  their  pro- 

98.  Chesapeake      Guano     Co.      v.  ceeds  to  his  reimbursement  after  th* 

862 


Staying  Actions  and  Suits. 


§56.' 


narily  a  creditor  will  not  be  enjoined  from  proceeding  at  law 
against  the  principal  and  sureties  in  the  first  instance,  the  general 
rule  being  that  he  is  not  obliged  to  look  to  the  principal  debtor 
or  his  property  and  exhaust  his  remedies  against  him  before  re- 
sorting to  the  surety,3  but  the  rule  is  otherwise  and  the  creditor 
may  be  enjoined  from  prosecuting  his  action  at  law  if  the  surety 
has  an  equitable  defense  not  cognizable  by  a  court  of  law.4 

§  563.  Enjoining  attachments  of  property  of  insolvent. — If  a 
citizen  of  Massachusetts,  with  knowledge  that  his  debtor  residing 


dispute  between  himself  and  the 
others  should  be  settled.  Neither  the 
authorities  referred  to  on  behalf  of 
the  plaintiff,  nor  any  others  which 
have  been  found,  sustain  any  greater 
right  on  the  part  of  the  plaintill  than 
this  under  the  circumstances  here 
presented.  The  oases  of  [rick  v. 
Black,  17  N.  J.  Eq.  189,  and  Thom- 
son v.  Taylor,  11  Hun  i  X.  V.  i .  274, 
were  sustained  upon  the  ground  of 
.special  equities  vested  in  the  surety 
subordinated  to  no  preceding  con- 
troversy, such  as  is  disclosed  in  this 
proceeding.  And  it  may  be  where  the 
collaterals  are  readily  available  to 
the  creditor  and  can  be  applied  by 
him  without  the  settlement  of  any 
dispute  to  the  payment  of  the  indebt- 
edness in  exoneration  of  the  surety 
with  the  same  facility  and  certainty 
as  a  proceeding  against  the  surety 
himself,  that  the  court  would  direct 
that  disposition  to  be  made  of  the 
securities  in  a  case  where  the  princi- 
pal debtor  is  himself  insolvent.  Mc- 
Connell  v.  Scott,  15  Ohio,  401."  This 
rule  was  adopted  also  in  Wilcox  v. 
Todd,  64  Mo.  388;  Wooten  v.  Bu- 
chanan. 40  Miss.  386.  And  see  Wright 
v.  Austin.  56  Barb.  (N.  Y.)  13-  First 
Nat.  Bank  v.  Wood,  71  N.  Y.  405. 
But  a  surety  cannot  invoke  this  rule 


so  long  as  his  right  to  the  collaterals 
is  disputed  by  others  claiming  pri- 
ority over  him.  Garry  s.  Cannon,  '■> 
I  red.   Kq.   64. 

3.  Mr-ade  v.  Grigsby,  26  Gratt. 
(Va.)   612. 

4.  Under  the  Virginia  statute,  a 
motion  was  made  to  charge  the  prin- 
cipal and  sureties  on  the  official  bond 
of  deputy  county  treasurer.  One  of 
the  sureties  filed  his  bill  to  enjoin 
further  proceedings,  alleging  that  he 
had  equitable  defenses  to  the  motion 
at  law.  The  bill  alleged  that  his  prin- 
cipal, being  indebted  to  defendant,  the 
county  treasurer,  executed  the  bond, 
and  gave  a  trust  deed  to  secure  the 
same;  that  said  trust  deed  had  been 
foreclosed  by  defendant,  and  the  pro- 
ceeds appropriated,  and  that  they 
were  ample  to  cover  all  the  deputy's 
liability  to  the  defendant;  and  not- 
withstanding defendant  is  now  seek- 
ing to  recover  the  amount  embraced 
in  the  bond  and  deed  of  trust,  alleged 
that  said  deed  of  trust  was  foreclosed 
for  a  private  debt  due  from  the 
deputy  to  defendant.  The  deputy  an- 
swered, admitting  the  allegations  of 
the  bill  to  be  true,  and  praying  that 
his  answer  be  treated  as  a  cross-bill. 
Held,  that  equity  had  jurisdiction  to 


863 


§  563  Staying  Actions  and  Suits. 

there  has  stopped  payment,  and  anticipating  proceedings  in  insolv- 
ency, makes  an  assignment  of  his  claim  to  a  citizen  of  another 
State,  without  consideration,  and  the  latter,  before  proceedings  in 
insolvency  are  begun  brings  an  action  upon  the  claim  in  the  foreign 
State,  and  attaches  property  of  the  debtor  there,  the  Massacbusettl 
court  will  restrain  the  Massachusetts  assignor  of  the  claim  from 
prosecuting  the  action  to  judgment,  if  he  has  control  of  such 
action.5  And  where  an  insolvent  debtor  has  made  an  assignment, 
creditors  who  are  citizens  of  the  State  in  which  the  assignment  is 
made  may  be  enjoined  at  the  suit  of  the  assignees  from  prosecuting 
by  attachment  a  suit  against  the  debtor's  property  in  another 
b'tate  where  such  suit  was  instituted  after  the  petition  in  insolvency 
was  filed.6  But  where  a  citizen  of  New  York  made  a  general  as 
signment  there  to  plaintiff,  for  the  benefit  of  his  creditors,  and  had 
property  in  Pennsylvania,  and  subsequent  to  such  assignment,  but 
before  it  was  recorded  in  Pennsylvania,  a  New  York  creditor 
attached  the  property  in  Pennsylvania,  it  was  held  that  an  action 
by  plaintiff  to  restrain  further  proceedings  under  the  attachment 
was  not  maintainable,  as  the  New  York  creditor  had  the  same  right 
to  enforce  payment  out  of  the  property  in  Pennsylvania  as  a  cred- 
itor there  resident  had.7  And  where  proceedings  in  bankruptcy 
had  been  instituted  in  the  Federal  court  against  the  debtor  to 
which  attaching  creditors  and  receivers  in  the  State  courts  have 
not  been  made  parties  the  latter  will  not  be  enjoined  from  inter- 
fering with  the  property  of  the  debtor.8 

grant  the  injunction,  as  plaintiff  could  paramount    unless    some    valid    claim 

be  estopped  to  set  up  at  law  the  de-  or    lien    existed     on     the     insolvent's 

fenses  inconsistent  with  the  terms  of  funds  in  the  foreign  State,  which,  un- 

the  bond,  and  would  proceed  to  a  final  der  the  laws  of  that  State,  would  di- 

disposition  of  the  case.     Penn  v.   In-  vert   them  from  the   assignee,   if   the 

gles,  82  Va.  65.  attachment  had  to  be  vacated  in  the 

5.  Cunningham      v.      Butler,      142  courts  of  that  State.      See  Lawrence 

Mass.    47,    6    N.    E.    782,   where    the  v.  Batcheller,  131  Mass.  504. 
court  followed  the  decision  in  Dehon  6.  Hazen  v.   Louisville  Nat.   Bank, 

v.  Foster,  4  Allen    (Mass.),  545.     In  70  Vt.  543,  41  Atl.  1046,  67  Am.  St. 

Dehon  v.  Foster,  7  Allen  (Mass.).  57,  Rep.  680. 

it  was  held  that  the  equitable  right  7.  Warner  v.  Jaffray,  96  N.  Y.  248. 

of  the  assignee  of  the  insolvent  was  8.  Re  Ogles,  93  Fed.  426. 

864 


Staying  Actions  and  Suits. 


§564r 


§  564.  Interpleader  and  injunction. — Two  or  more  persons  who 
claim  the  same  thing,  of  debt  or  duty,  from  a  third  person,  will 
not  be  decreed  to  interplead  touching  their  claims,  and  be  enjoined 
from  the  prosecution  of  separate  actions  against  him,  unless  he  is 
a  mere  stakeholder,  and  on  depositing  the  money  or  property  in 
question  into  court,  may  thereby  be  absolutely  discharged  from 
liability  to  any  of  the  claimants,  and  thus  leave  them  to  proceed 
with  their  controversy.9  But  where  the  plaintiff  in  an  action  for 
interpleader  could  not  without  hazard  pay  the  sum  due  to  either 
of  the  defendants,  and  had,  before  his  action  for  interpleader  was 
begun,  paid  the  sum  due  by  him  into  court,  which  both  defendants 
by  their  answers  claimed,  it  was  held  on  appeal  that  he  was  entitled 


9.  Bassett  v.  Leslie.  123  N.  Y.  396, 
25  N.  E.  386,  per  Earl,  J.:  "This  is 
an  action  of  interpleader,  and  the 
plaintiff  prayed  judgment  that  the 
defendants  might  be  decreed  to  inter- 
plead touching  their  several  claims, 
and  that  both  defendants  might  be 
perpetually  enjoined  from  the  further 
prosecution  of  actions  commenced  by 
them  against  the  plaintiffs. 
This,  under  the  old  chancery  practice, 
would  have  been  called  a  strict  bill  of 
interpleader,  and  to  maintain  such 
an  action,  it  is  necessary  to  allege 
and  show  that  two  or  more  persons 
have  preferred  a  claim  against  the 
plaintiff;  that  they  claim  the  same 
thing;  that  the  plaintiff  has  no 
beneficial  interest  in  anything 
claimed,  and  that  it  cannot  be  de- 
termined without  hazard  to  himself, 
to  which  of  the  two  defendants  the 
money  or  thing  belongs.  There  must 
also  be  an  offer  to  bring  the  money 
or  thing  into  court.  Mohawk,  etc.,  R. 
Co.  v.  Clute,  4  Paige,  384;  Dorn  v. 
Fox,  61  N.  Y.  268;  Baltimore,  etc., 
R.  Co.  v.  Arthur,  90  N.  Y.  234.  Such 
an  action  always  supposes  that  the 
plaintiff  is  a  mere  stakeholder  for  one 


or  other  of  the  defendants  who  claim 
the  stake,  and  the  case  must  be  such 
that  he  can  pay  or  deposit  the  money 
or  property  into  court,  and  be  abso- 
lutely discharged  from  all  liability  to 
either  of  the  defendants,  and  thus 
pass  utterly  out  of  the  controversy, 
leaving  that  to  proceed  between  thet 
several  claimants;  and  an  action  of 
interpleader  cannot  be  sustained 
where,  from  the  complaint  itself,  it 
appears  that  one  of  the  complainant -i 
is  clearly  entitled  to  the  debt  or  thing 
claimed,  to  the  exclusion  of  the  other. 
Mohawk,  etc.,  R.  Co.  v.  Clute,  4 
Paige,  384."  In  German  Sav.  Bank 
v.  Friend,  61  N.  Y.  Super.  400,  it  wa3 
held  that  the  court  would  refuse  to 
allow  a  savings  bank  to  implead  an 
adverse  claimant  of  a  deposit  in  the 
bank,  who  claims  by  title  superior  to 
depositor,  as  the  bank  cannot  dispute 
the  title  of  its  depositor.  Lund  v. 
Seaman's  Sav.  Bank,  20  How.  Pr. 
461;  S.  C,  23  How.  Pr.  258.  Sec 
Lawson  v.  Terminal  Warehouse  Co., 
70  Hun,  281,  24  ST.  Y.  Supp.  281.  In 
Aleck  v.  Jackson,  49  N.  J.  Eq.  507, 
23  Atl.  760,  the  distinction  is  noticed 
between  a  bill  of  strict  interpleader, 


$65 


55 


^  5(}5  Si  lyxxg  Actions  and  Suits. 

to  a  judgment  of  interpleader,  and  to  an  injunction  perpetually 
restraining  them  from  any  further  prosecution  against  him.19 

§  565.  Same  subject. — Where  pending  a  suit  by  creditors  of 
the  holder  of  a  deposit  certificate  against  him  and  the  bankers 
which  issued  it,  in  which  also  the  bankers  are  enjoined  from  pay- 
ing it,  another  suit  is  brought  against  the  bankers  by  a  present 
holder  of  the  certificate,  who  took  it  from  the  former  holder  after 
the  first  suit  was  brought,  and  a  receiver  therein  bad  ben  ap- 
pointed, the  superior  court  of  the  county  in  which  both  suits  a  im- 
pending has  jurisdiction  to  enjoin  the  plaintiff  in  the  second  suit 
from  prosecuting  it,  though  he  is  a  resident  of  another  county. 
and  that  court  has  jurisdiction  also  to  order  him  to  be  made  a 
party  defendant  to  the  first  suit,  and  there  litigate  his  right  to  the 
fund  in  the  bank,  as  against  the  receiver  and  the  plaintiffs  in  that 
suit,  whether  they  claim  in  harmony  with  the  receiver  or  in  oppo- 
sition to  the  interests  which  he  represents."  And  where  property 
deposited  in  safe  deposit  company  is  claimed  by  the  depositor's 
administrator,  who  does  not  produce  the  keys  of  the  box,  but 
gives  an  explanation  of  their  loss,  and  it  is  also  claimed  by  another 
person  as  a  donee,  who  produces  the  keys,  the  company  may  inter- 
plead the  claimants,  and  enjoin  them  from  suing  for  the  property.11 

which  is  filed  by  a  mere  stakeholder,  bility,  or,   to  speak  more  accurately, 

and   a  bill     in    the-    nature   of   inter-  against  a  double  vexation  on  account 

pleader,    in    which    the    complainant  of  one  liability.     Caulkins  v.  Bolton, 

aeeka  some  relief  for  himself.  31    Hun,    458,    aff'd    98    N.    Y.    511; 

10.  Crano  v.  McDonald,  118  N.  Y.  Johnston  v.  Slimmel,  89  N.  Y.   117; 

«48,  23  N.  E.  991.    In  this  case  Vann,  Schuyler  v.  Pelissier,  3  Edw.  Ch.  191  j 

J.,  said:     "This  conflict  in  the  deci-  Bedell  v.  Hoffman,  2  Paige,  199;  Belt 

sions  of  the  courts  shows  that  the  ad-  v.  Hunt,  3  Barb.  Ch.  391;  Badeau  v. 

verse  claims    of    the    defendants    in-  Tylee,  1  Sandf.  Ch.  270;  German  Ex. 

volved   a  difficult  question,  and  is   a  Bank  v.  Com'rs,   6  Abb.   N.   C.    394; 

conclusive    answer    to   the   contention  Atkinson    v.    Manks,    1    Cowen,    691. 

of  the  appellant  that  the  plaintiff  did  703." 

not  need  the  aid  of  an  action  of  this  11.  James  v.  Sams,  90  Ga.  404,  17 

character.     The  law  did  not  place  so  S.  E.  962. 

great  a  responsibility  upon  him,  but  12.  Mercantile  Safe  Deposit  Co.  v. 

provided  him  with  a  remedy  to  pro-  Dimon.  25  N.  Y.  Supp.  388. 
tect  himself   against   the   double    lia- 

S66 


Staying  Actions  and  Suits.  §  566 

§  566.  Enjoining  action  at  law  in  case  of  set-off. — In  general, 
the  insolvency  of  a  creditor  who  is  pressing  the  foreclosure  or 
enforcement  of  a  lien,  and  against  whom  off-sets  are  claimed  by 
the  debtor,  constitutes  good  ground  for  an  injunction;  but  when 
this  is  the  only  ground  for  equitable  interference,  and  plaintiff 
fails  to  prove  the  insolvency,  the  injunction  should  be  dissolved.15 
And  in  such  a  case  the  facts  of  insolvency  upon  which  the  appli- 
cation for  an  injunction  is  made,  should  appear  by  positive  aver- 
ments founded  on  complainant's  own  knowledge  or  that  of  an 
affiant  cognizant  of  the  facts.14  The  general  rule  is  that  when 
there  are  cross  demands  between  two  parties  of  such  a  nature  that 
if  both  were  recoverable  at  law,  they  would  be  the  subject  of 
legal  set-off,  then  if  either  of  the  demands  is  matter  of  equitable 
jurisdiction,  as  where  one  of  the  parties  becomes  insolvent,  the 
set-off  will  be  enforced  by  an  injunction  restraining  the  insolvent 
from  an  action  at  law  on  his  demand.15  In  a  suit  seeking  an  equit- 
able off-set  upon  an  account  between  former  partners,  and  an 
injunction  to  restrain  a  suit  at  law  by  the  defendant  against  the 
complainant  upon  notes  given  in  the  course  of  partnership  trans- 
actions, the  mere  assertion  of  a  counter  demand  will  not  sustain 
the  injunction  issued  on  filing  the  bill.  Some  account  must  be 
given  or  statement  made,  or  facts  alleged  from  which  the  court 
can  judge  whether  the  complainant  would   probably  be   able  to 

13.   Farland  v.   Wood,   35   W.   Va.  against  him,  for  which  he  pays  noth- 

458,  14  S.  E.  140,  per  Lucas,  J.:     "In  ing,     and     with     knowledge    of    the 

many  cases  the  insolvency  of  a  credi-  debtor's  insolvency  is  not  in  a  posi- 

tor,  against  whom  off-sets  are  claimed  lion  to  demand  the  application  of  the 

while  he  is  pressing  the  enforcement  rule  as  to  equitable  set-offs.     Pond  v. 

of  a  lien,  has    been    considered  good  Harwood,    139   N.   Y.    Ill,   34   N.    E. 

ground  for  the  interposition  of  equity  768.     And  see  Hackett  v.  Connett,  2 

by  injunction.    But  as  I  have  said,  if  Edw.  Ch.  (N.  Y.)  73;  Wolcott  v.  Sul- 

plaintiff    fails    to    prove    the    insol-  livan,  1  Edw.  Ch.  (N.  Y.)  399;  Hatch 

vency,   the   injunction    must    be    dis-  v.  Mayor,  etc.,  82  N.  Y.  442;  Greene 

solved.       McClellan    v.    Kinnaird,    6  v.  Darling,  5  Mason,  202. 
Cratt.     352;     Meem     v.     Rucker,    10  14.  Hale  v.  Railroad  Company,  23 

Gratt.    506;    Lindsay    v.    Jackson,    2  W.  Va.  454. 

Paige,   582;    McMillan   v.    Farrell,   7  15.  Clark  v.  Cort,   1   Craig  &  Ph. 

W.  Va.  223;   Western,    etc.,    Co.    v.  154.     And  see  O'Connor  v.  Spraight, 

Virginia  Coal  Co.,  10  W.  Va.  250.    A  1  Sch.  &  Lef.  305. 
purchaser  of  a  debt  after  suit  brought 

867 


g  567 


Stayibo  Actions  and  Suits. 


.stablish  his  claim.1*  And  equity  will  not  interfere  to  restrain  the 
recovery  at  law  of  a  legacy,  on  the  ground  that  the  legatee  in 
indebted  on  a  bond  to  the  testator,  payable  at  a  future  day,  and 
a  decree  against  the  legatee  for  costs  in  I  suit  to  enforce  the 
execution  of  ■  new  band,  is  no  ground  to  enjoin  the  legatee  from 
an  action  at  law  to  recover  the  legacy,  since  Bach  coed  could  bi 

off  in  the  action  at  law.1, 
t 

§  507.  Enjoining  action  where  creditor  agreed  to  release  claim. 

Though  a  defendant  at  law,  with  a  claim  not  available  in  set-off, 

cannot  usually  be  relieved  in  equity  against  a  solvent  plaintiff; 
yet  he  can  be  relieved  if  the  claim  arises  cut  of  the  matter  in  con- 
troversy, or  is  an  agreement  so  connected  therewith,  as,  if  observed, 
to  destroy  the  demand  in  suit.18  Thus,  if  a  person,  in  disregard 
of  his  agreement  to  execute  certain  releases,  brings  an  action  on 
the  claim  which  was  agreed  to  be  released,  the  defendant  is  entitled 
to  have  the  action  restrained,  and  to  a  decree  for  the  specific  per- 
formance of  the  agreement  to  n  Lease  '     Vnd  where  a  congregation, 


16.  Hewitt  v.  Kuhl.  25  N.  J.  Eq. 
24,  per  Runyon,  Ch.:  "To  maintain 
an  equitable  off-set,  the  party  seek- 
ing the  benefit  of  it  must  show  some 
equitable  ground  for  being  protected 
against  his  adversary's  demand.  The 
mere  existence  of  a  counter  demand  is 
obviously  not  enough.  Nor  will  the 
mere  pendency  of  an  account,  out  of 
which  a  cross  demand  may  arise,  con- 
fer the  right  to  an  equitable  off-set. 
Rawson  v.  Samuel,  1  Craig  &  Ph.  161. 
179;  Wartnaby  v.  Shuttleworth.  1 
Jut.  469;  Dodd  v.  Lydall,  1  Hare, 
337;  Gordon  v.  Pym,  3  Hare,  223; 
Duncan  v.  Lyon,  3  Johns.  Ch.  351. 

17.  Hayes  v.  Hayes,  2  Del.  Ch.  191. 

18.  Reed  v.  Newburgh  Bank,  1 
Paige   (N.  Y.),  215. 

19.  Baker  v.  Hawkins.  14  R.  L 
359,  per  Durfee,  C.  J. :  "  The  case  is 
not  like  an  ordinary  case  of  set-off, 
where  there  is  no  special  equity,  but 


rather   like  a  case  of  set-off  under  a 
contract  which  creates  a  special  equity 
on  which  the    debtor    has    been  per 
suaded  to  rely  and  which  the  creditor 
has  no  good  reason  for  not  observing. 
Wln ,      under      such      circumstances, 
should   not    the   creditor    be   required 
to   do   the   very   thing   which   he   haa 
agreed    to   do,    and   especially   where, 
as   in   this   case,   his   claim   has   been 
kept  alive  by  his  debtor's  reliance  on 
bis  doing  it.     ...    It  has  been  held 
that  an  agreement  between  a  creditor 
and  a  third  person,  for  valuable  con- 
sideration,     whereby      the      creditor 
agreed     to     compromise     his     claim 
against  the  debtor,  would  be  specific- 
ally enforced.      Phillips  v.  Berger,  2 
Barb.  608,  8  Barb.  527.    See,  also,  Ad- 
derley  v.  Dixon,   1   Sim.  &  Stu.   607. 
The  tendency  in  this  country  is  to  ex- 
tend the  jurisdiction  to   all  cases  in 
which  either  of  the  parties  is  fairly 


868 


Staying  Actions  and  Suits.  §  5b\S 

in  view  of  the  small  salary  its  pastor  has  received,  agrees  at  the 
conclusion  of  his  pastorate  to  allow  him  a  certain  credit,  on  a  bond, 
on  which  he  is  liable  to  the  society,  and  the  trustees  acquiesce  in 
the  agreement,  the  pastor  is  entitled  to  an  injunction  to  restrain 
an  action  at  law  on  the  bond,  and  to  have  the  credit  decreed  to  be 
allowed.20 

§  568.  Same  subject. — Where  plaintiff  sought  to  restrain  the 
collection  of  claims  against  it  on  policies  of  insurance  assigned 
to  the  defendant  by  the  former  holders  thereof,  who  had  sur- 
rendered the  policies  for  their  cash  value  as  estimated  by  plaintiff, 
and  had  given  receipts  in  full  discharge  of  all  claims,  and  defend- 
ant alleged  that  the  surrender  of  the  policies  and  the  receipts  had 
been  fraudulently  obtained,  it  was  held  that  plaintiff  was  not 
entitled  to  an  injunction,  for  the  very  satisfactory  and  controlling 
reason  in  equity,  that  the  effect  of  the  assignment  would  be  to 
prevent  a  multiplicity  of  suits  by  the  former  policyholders  in 
several  different  jurisdictions,  and  instead,  there  would  be  but  a 
single  suit  by  the  assignee  brought  where  the  plaintiff  company 
was  domiciled.21  And  an  injunction  will  not  lie  to  restrain  de- 
fendant from  prosecuting  in  another  court  of  competent  jurisdic- 
tion, proceedings  instituted  on  his  complaint  to  compel  plaintiff 
to  remove  a  soda  water  stand  from  the  sidewalk  in  front  of  plain- 
tiff's premises,  but  a  condition  will  be  imposed  either  that  plaintiff 
be  made  a  party  to,  or  notified  of  the  proceedings  to  remove  the 
soda  water  stand.22  Again,  where  a  railroad  company  sold  an  in- 
terest in  certain  cars  to  a  car  company,  leased  the  remaining 
interest  therein  to  the  car  company,  and  made  a  contract  with  it 
for  the  operation  of  the  cars  by  the  latter,  with  a  division  of  the 
profits  and  the  contract  provided  that  the  railroad  company  might 
terminate  the  lease,  and  pay  the  car  company  for  its  interest  in  the 
cars,  and  the  railroad  company  terminated  the  lease  without  paying 

entitled  to  a  more  perfect  relief  that  20.  Worrell  v.  First  Presb.  Church, 

he  can  get  at  law.     Waterman,  Spec.  23  N.  J.  Eq.  96. 

Perf.,  §  16."  21.   Metropolitan   Life   Ins.   Co.   v. 

See,  also,  Bomeisler  v.  Forster,  154  Fuller,  61  Conn.  252,  23  All.  193. 

N.  Y.  229,  48  N.  E.  534,  39  L.  R.  A.  22.  L*7aru3  v.  Danziger,  16  N.  Y. 

240,  rev'g    10  App.   Div.  43,  626,  41  Supp.  200,  27  Abb.  N.  C.  147. 
N.  Y.  Supp.  742. 

SC9 


S  .r>*;!t  Stating  Actions  and  Suits. 

for  the  car  company's  interest,  it  was  held  that,  on  being  sued  at 
law  for  the  value  of  the  car  company's  interest  in  the  cars,  the 
railroad  company  could  not  enjoin  the  prosecution  of  such  action 
on  the  ground  that  the  car  company  had  not  fairly  divided  the 
profits,  since  the  various  branches  of  the  contract  were  totally 
distinct.23  And  where  plaintiff,  who  was  one  of  the  town  selectmen, 
agreed  to  indemnify  the  town  against  loss  if  the  selectmen  would 
release  certain  goods  which  had  been  attached  in  a  suit  upon  a 
tax  collector's  bond,  so  that  plaintiff  could  satisfy  an  execution 
which  he  held  against  one  of  the  defendants  in  that  suit,  by  levy 
upon  the  goods  so  released,  it  was  held  that  plaintiff  could  not 
enjoin  the  town  from  proceeding  with  an  action  at  law  to  enforce 
the  indemnity  agreement,  on  the  ground  that  the  selectmen  had 
neglected  to  enforce  payment  of  uncollected  taxes,  because  he,  as. 
one  of  the  board,  was  guilty  with  the  others,  and  aho  because, 
by  accepting  the  plaintiff's  agreement,  the  selectmen  did  not 
waive  or  abandon  any  legal  remedy  to  secure  payment  from  the 
collector  of  the  delinquent  taxes.24 

§  569.  Actions  barred  by  statute  of  limitations. — A  citizen 
of  one  State  will  not,  it  has  been  decided,  be  enjoined,  in  that 
State,  from  prosecuting  an  action  at  law  against  the  intestate  estate 
of  a  deceased  citizen  of  such  State,  found  in  another  State,  upon 
a  cause  of  action  barred  by  the  statute  of  limitations  of  the  former 
State,  but  not  barred  by  the  statute  of  limitations  of  the  other 
State  in  which  the  action  is  being  prosecuted,  it  being  declared 
that  it  is  not  inequitable  for  the  party  to  prosecute  his  action  in 
the  latter  forum,  merely  because  it  affords  him  a  better  remedy 
than  that  of  his  own  domicile.25    But  a  court  of  equity  will  at  the 

23.  Pullman  Palace  Car  Co.  v.  Chi-  law  against  the  intestate  estate  of  a 
cago  M.  R.  Co.,  56  Fed.  756.  deceased  citizen  of  this   State,  found 

24.  Spaulding  v.  Northumberland,  in  another  State,  upon  a  cause  of  ac- 
64  N.  H.  153,  6  Atl.  642.  tion  which  is  barred   by  our  statute 

25.  Thorndike  v.  Thorndike,  142  of  limitations  but  which  is  not  barred 
111.  450.  32  N.  E.  510,  per  Scholfield,  by  the  statute  of  limitations  of  the 
J.:  "The  single  question  is  here  pre-  State  in  which  the  suit  is  being  prose- 
sented  whether  the  fact  that  a  citizen  cuted,  authorizes  a  court  of  chancery 
of  this  State  is  prosecuting  a  suit  at  in  this  State,  having  jurisdiction  o£ 

sro 


Staying  Actions  and  Suits. 


§570 


instance  of  a  purchaser  under  the  husband,  enjoin  the  widow  from 
proceeding  in  the  probate  court  to  procure  an  allotment  of  dower 
where  her  right  is  barred  by  the  statute  of  limitations.26  In  this 
connection  it  is  decided  that  a  bill  in  equity  to  enjoin  the  prosecu- 
tion of  an  action  on  a  promissory  note,  is  not  demurrable  on  the 
ground  that  complainant  had  a  defense  at  law  by  pleading  the 
statute  of  limitations,  as  to  plead  that  statute  is  not  a  meritorious 
defense.27 

§  570.  Same  subject. — A  court  of  equity  may  restrain  a  de- 
fendant from  setting  up  the  statute  of  limitations  as  a  defense  to 
an  action  at  law,  where  it  is  clearly  made  to  appear  that  he  has, 
by  injunction,  prevented  the  plaintiff  from  bringing  the  action 
until  sufficient  time  has  elapsed  to  render  such  defense  available 
to  him.28    And  in  an  action  at  law  which,  but  for  the  fact  that  a 


the  person  of  the  plaintiff,  to  enjoin 
him  from  further  prosecuting  his  suit 
at  law  in  the  other  State.  The  court 
below  decided,  and  as  we  think  cor- 
rectly, in  the  negative.  The  statute 
of  limitations  is  a  purely  legal,  as 
distinguished  from  an  equitable  de- 
fense; and  although  courts  of  equity 
will  ordinarily  act  in  obedience,  and 
in  analogy  to  the  statute  of  limita- 
tions, yet  they  will  also  in  proper 
cases  interfere  in  actions  at  law  to 
prevent  the  bar  of  the  statute  where 
it  wounld  be  inequitable  and  unjust. 
2  Story,  Eq.  Jur.,  §  1521.  And  so  it 
has  been  held  that  where  the  obliga- 
tion is  clear,  and  its  essential  charac- 
ter has  not  been  affected  by  the  lapse 
of  time,  equity  will  enforce  a  claim 
of  long  standing  as  readily  as  one  of 
recent  origin,  as  between  the  immedi- 
ate parties  to  the  transaction.  13 
Am.  &  Eng.  Enc.  674,  note  5;  United 
States  v.  Alexandria,  19  Fed.  609, 
and  cases  cited;  Reynolds  v.  Sumner, 
126  111.  58,  18  N.  E.  334.  The  fact 
that  the  remedy  at  law  is  barred  here 
does  not  give  even  a  legal,  much  less 


an  equitable  right  to  interpose  the 
bar  in  the  action  in  the  foreign  State, 
against  the  property  therein.  Mitchell 
v.  Shook,  72  111.  492;  Mineral  Point 
R.  Co.  v.  Barron,  83  111.  365;  Wabasli 
R.  Co.  v.  Dougan,  142  111.  248,  31  N. 
E.  594.  No  case  has  been  cited,  and 
we  are  aware  of  none,  holding  that  it 
is  inequitable  for  a  party  to  prosecute 
a  legal  demand  against  another  within 
any  forum  that  will  take  legal  juris- 
diction of  the  case,  merely  because 
that  forum  will  afford  him  a  better 
remedy  than  that  of  his  domicil.  To 
justify  equitable  interposition  in  a 
case  like  the  present,  it  must  be  made 
to  appear  that  an  equitable  right  will 
otherwise  be  denied  the  party  seeking 
relief." 

26.  Moody  v.  Harper,  38  MiBS. 
599. 

27.  Hastings  v.  Belden,  55  Vt. 
273. 

28.  Lamb  v.  Martin,  43  N.  J.  Eq. 
34,  9  Atl.  747,  following  the  decision 
in  Doughty  v.  Doughty,  10  N.  J.  Eq. 
347,  where  Williamson,  Ch.  said: 
"  It  would  be  unconscientious  for  a. 


871 


§  571  StaYIM,    A<    ltuN.s   AND  SuiZB. 

receiver  had  been  appointed  for  the  defendant  corporation,  would 
have  been  seasonably  begun,  the  receiver  was  brought  in  by  amend- 
ment, and  it  was  held  that  the  receiver  should  be  enjoined  from 
pleading  the  statute  of  limitations  as  a  bar.29  And  a  party  who  has 
deceived  another  as  to  the  fact  that  a  cause  of  action  has  accrued 
may  be  enjoined  in  an  action  thereon  by  the  latter  from  pleading 
the  statute  of  limitations. no  P>ut  whore  a  person  makes  a  contract 
to  convey  land  to  another,  and  the  vendee  pays  part  of  the  purchase 
money,  and  the  vendor  then  refuses  to  perform,  and  the  vendee 
sues  for  specific  performance,  and  a  decree  for  specific  perform- 
ance is  made,  the  decree  extinguishes  the  vendee's  right  of  action 
for  the  purchase  money  paid  ;  and  if  he  allows  the  decree  to  stand 
unperformed  for  six  years,  he  will  not,  if  he  sues  after  that  time 
for  his  purchase  money,  be  entitled  to  an  injunction  restraining 
the  vendor  from  setting  up  the  statute  of  limitations.81 

§  571.  In  cases  of  res  adjudicata. — An  adjudication  by  a  court 
having  jurisdiction  of  the  subject  matter  and  the  parties,  is  con- 
clusive not  only  as  to  matters  actually  determined,  but  also  as 
to  every  other  incidental  matter  which  the  parties  might  have  liti- 
gated, and  a  subsequent  action,  involving  substantially  the  same 
controversy,  between  the  same  parties,  will  be  enjoined,  though 
it  be  an  action  in  ejectment,  while  the  first  was  an  action  for 
partition.  And  dismissal  of  a  bill  in  equity,  upon  the  merits,  is 
a  bar  to  further  proceedings  in  the  same  court  for  the  same  pur- 
pose, between  the  same,  parties,  though  the  court  may  not  have 
gone  into  the  evidence.32    And  where  a  receiver  of  a  Federal  court 


party  to  plead  the  statute  of  limita-,  <w.  Central  R.  Co.,  42  N.  J.  Eq.  591,  8 

tions   against    an   adversary   who,    at  .Atl.  648. 

his    solicitation,    had    been    enjoined  30.  Holloway  v.  Appelget,  55  N.  J. 

from  his  suit;   and  it  would  seem  to  Eq.  583,  40  Atl.  27. 

be   the   appropriate   remedy   that  the  31.  Lamb  v.  Martin,  43  N.  J.  Eq. 

same  instrument  which   he  had  used  34,  38,  9  Atl.  747. 

to  interrupt  the   legal   proceeding  of  32.  Rogers   v.   Rogers,  37   W.  Va. 

another,    should    be    interposed    as    a  407,   16  S.  E.  633;   Sayre  Adm'rs  v. 

shield  to  prevent  his  taking  an  undue  Harpold,  33  W.  Va.  556,  11  S.  E.  16; 

advantage  of  such  interruption."  Corrothers  v.  Sargent,  20  W.  Va.  351 ; 

29.  Lehigh  Coal  &  Navigation  Co.  McCoy   v.   McCoy,   29    W.   Va.   794; 

872 


Staying  Actions  and  Suits. 


571 


applies  to  the  court  for  protection  against  distraint  of  property  in 
his  hands  for  the  payment  of  a  State  tax  which  he  believes  to  be 
invalid,  basing  his  action  on  a  prior  decision  of  the  same  court  that 
the  tax  was  illegal,  the  court  will  extend  such  protection  by  enjoin- 


Tracey  v.  Shumate,   22  W.  Va.  475. 
But  see  Evans  v.  Taylor,  28  W.  Va. 
184,  189.    In  Rogers  v.  Rogers,  supra, 
English,    J.,    said:      "In    Harris    v. 
Harris,  36  Barb.  88,  the  court  thus 
remarks:      'An   adjudication   is   final 
and    conclusive,   not   only   as   to    the 
matters  determined,  but  as  to  every 
ether  matter  which  the  parties  might 
have    litigated   and   have    decided  as 
incident  to   or   essentially   connected 
with  the  subject  matter  of  the  liti- 
gation,    and     every     matter    coming 
within  the  legitimate  purview  of  the 
original  action,  both  iu  respect  to  the 
matters  of  claim  and  of  defense.'     It 
is  not  essential,   he  says,   '  that  the 
matters  should   have  been  distinctly 
put    in    issue    in    a    former    suit    to 
make  it  an  estoppel.     It  is  sufficient 
if  it  be  shown  to  have  been  tried  and 
settled  in  a  former  suit.     The  force 
of  a  judgment  as  res  adjudicata  can- 
not   be    destroyed    or    impaired    by 
showing  that  it  is  clearly  erroneous 
and  ought  not  to  have  been  rendered.' 
Citing  Case  v.  Beauregard,  101  U.  S. 
688.      Again    he    says:      'It    is    true 
that  a  judgment  or  decree,  to  be  an 
estoppel,  must  be  a  judgment  or  de- 
cree upon  the  merits;  but  by  decree 
upon  the  merits  is  not  meant  "  on  the 
merits"  in  the  moral  sense  of  those 
words.    It  is  sufficient  that  the  status 
of  the  suit  was  such  that  the  parties 
might   have   had  their   suit  disposed 
of  on  its  merits  if  they  had  presented 
all  their  evidence,  and  the  court  had 
properly    understood    the    facts,    and 
correctly    applied    the     law    to    the 
facts.'      Citing   Hughes    v.    U.    S.,    4 
Wall.    232.     Applying   these    princi- 


ples to  the  case  under  consideration, 
there   was    nothing   to   prevent  John 
Rogers,  the  plaintiff  in  the  partition 
suit,   from   showing   that   he   paid   a 
portion  of  the  purchase  money  to  A. 
G.   Bailey  for  the  200-acre  tract  of 
land;    and    although    his    disposition 
was  taken,  he  does  not  show  that  he 
paid  one  dollar  of  the  purchase  money 
for  said  tract,  and  no  other  witness 
shows  that  he  paid  any  part  of  said 
purchase  money.     A.  G.  Bailey,  who 
filed  his  answer  in  the  case,  and  who 
recites    in   his    deed    that    said    pur- 
chase money  was  paid  him  by  George 
W.   and    John   Rogers,   or   that  they 
furnished  the  money  and  funds  with 
which  the  purchase  money  was  paid, 
was   not  examined  as  a  witness,  as 
he   might   have   been,   to   prove   said 
fact.     When   said  land  was  sold  for 
George  W.  Rogers'  liability  as  surety, 
said  John  Rogers  claimed  the  73  acre 
tract,  but  he  asserted  no  claim  to  the 
200-acre  tract.     The  unsworn  answer 
of   A.     G.    Bailey    was     no   evidence 
against   his   co-defendants,   and,   not- 
withstanding it  is  apparent  that  the 
said      John      Rogers      might      have 
strengthened  his  case  by  his  own  tes- 
timony and  by  other  witnesses,  it  is 
equally  manifest  that  the  case  was  de- 
cided upon  its  merits.    And  as  to  the 
question  as  to  whether  the  said  John 
Rogers  was  entitled  to  any  portion  of 
said   200-acre   tract,   or  to  have   the 
same    partitioned    and    set   apart   to 
him.  it  must  be  regarded  as  res  ad- 
judicata; and  upon  the  question  as 
to    whether    the    court    below    acted 
properly  in  restraining  the  introduc- 
tion  of   the   deed   from    said   A.    G. 


873 


§  572 


Staying  Actions  and  Suits. 


ing  the  sheriff,  and  requiring  the  property  to  be  restored  to  the 
receiver,  until  the  presumption  of  the  soundness  of  such  prior 
decision  has  been  overcome.33 

§572.  Same  subject;  equitable  estoppels. — Upon  a  bill  to 
restrain  defendant  from  prosecuting  her  action  at  law  for  dower, 
it  appeared  that  the  full  court,  since  the  filing  of  the  bill,  had  sus- 
tained the  ruling  of  the  presiding  justice  in  the  action  at  law ; 
holding  that  complainant's  evidence,  giving  it  the  most  favorable 
construction  possible,  did  not  constitute  a  defense  to  the  action,  and 
it  was  held  that  the  bill  should  be  dismissed,  in  accordance 
with  the  rule  that  a  court  of  equity  will  refuse  relief,  when  it 
appears  that  the  same  right  which  the  plaintiff  seeks  to  enforce 
has  been  adjudicated  adversely  to  him,  in  an  action  at  law  between 
the  same  parties.34  And  equitable  estoppels  being  favored,  may 
be  interposed  in  an  action  at  law,  as  well  as  in  an  action  in  equity.35 


Bailey  in  the  action  of  ejectment, 
and  from  further  prosecuting  said  ac- 
tion of  ejectment,  see  Hill,  Inj.,  p. 
2G0,  §  15,  where  it  is  said:  'Equity 
will  restrain  by  injunction,  not  only 
the  suit  at  law  itself,  but  also  the 
introduction  of  evidence  in  such  suit 
which,  though  perhaps  legally  ad- 
missible, is  manifestly  contrary  to 
right  and  justice.'  See,  also,  3  Wait, 
Act.  &  Def.,  p.  179,  §  12;  also  Id., 
p.  718,  §  1,  where  it  is  said:  '  When- 
ever a  spurious  deed  or  instrument, 
valid  on  its  face,  and  capable  of  a 
vexatious  use  after  the  means  of  de- 
fense are  lost  or  impaired,  or  is  in 
any  way  calculated  to  throw  a  cloud 
upon  the  title,  is  outstanding,  a 
court  of  equity  will  entertain  a  suit 
to  compel  its  delivery  and  cancella- 
tion and  will  also  grant  an  injunc- 
tion restraining  any  proceeding  based 
upon  or  transfer  of  such  instrument 
before  judgment.'  See,  also,  Webb  v. 
Wynn,  35  Ga.  216." 

33.  Ex  parte  Chamberlain,  55  Fed. 
704.    See  Burlington,  C.  R.  &  N.  Ry. 


Co.  v.  Dey,  89  Iowa,  13.  56  N.  W. 
267,  271,  and  the  cases  there  cited 
on  the  subject  of  res  adjudicata. 

34.  Alley  v.  Chase,  83  Me.  537,  22 
Atl.  393,  per  Walton,  J.:  "It  is  a 
settled  rule  in  equity  that  when  a 
party  has  an  adequate  remedy  at 
law,  a  suit  in  equity  to  enforce  the 
same  right  cannot  be  maintained. 
There  are  a  few  exceptions  to  this 
rule,  but  none  of  them  apply  in  thia 
case.  The  same  right  which  the 
parties  seek  to  enforce  in  this  suit, 
not  only  could  have  been  but  actu- 
ally was  presented  as  a  ground  of  de- 
fense in  the  action  of  dower,  Chase  v. 
Alley,  82  Me.  234,  19  Atl.  397,  and 
was  passed  upon  by  the  court.  It 
not  only  might  have  been,  but  it  was 
in  fact  litigated  in  that  suit.  And 
for  that  reason  alone,  if  for  no  other, 
it  would  be  the  duty  of  the  court  to 
refuse  the  relief  asked  for  in  this 
suit.  Bachelder  v.  Bean,  76  Me.  370; 
Milliken  v.  Dockray,  80  Me.  82,  13 
Atl.  127." 

35.  Stanwood  v.  McLellan,  48  Me. 


874 


Staying  Actions  and  Suits.       §§  573,  574,  575 

§  573.  Restraining  the  enforcement  of  void  ordinances — 
Where  a  municipal  corporation  is  seeking  to  enforce  an  ordinance 
which  is  void,  it  may  be  enjoined  at  the  suit  of  any  person  who  is 
injuriously  affected  by  it.36 

§  574.  Criminal  proceedings  not  enjoined. — The  rule  that 
courts  of  equity  will  not  restrain  criminal  proceedings,37  has  been 
applied  where  a  sewing  machine  company  sought  to  restrain  a 
sheriff  and  tax  collector  from  demanding  from  its  agents  a  license 
tax  imposed  by  the  revenue  act,  and  from  prosecuting  the  agents 
criminally  from  violating  the  provisions  of  the  act.38  And  a  city 
will  not  be  enjoined  from  enforcing  a  valid  penal  ordinance  in 
relation  to  peddling.39  And  proceedings  at  law,  not  of  a  strictly 
civil  nature,  will  not  be  enjoined  except  where  the  same  right  is 
sought  to  bo  substantiated  both  at  law  and  in  equity.40 

§  575.  Enjoining  fraudulent  defenses. — Where  a  person,  hav- 
ing his  choice  of  legal  and  equitable  remedies,  chooses  an  action 
at  law,  he  cannot  ordinarily  enjoin  the  defendant  from  making 
therein  any  defense  he  may  have,  but  should,  on  discovering  he 

275;  Piper  v.  Gilmore,  49  Me.  149;  vent  washing  and  cutting  away  of 
Wood  v.  Pennell,  51  Me.  52;  Cas-  property  along  the  line  of  the  ditch, 
well  v.  Fuller,  77  Me.  105;  Fountain  may  be  enjoined  from  prosecuting 
v.  Whelpley,  77  Me.  132;  Briggs  v.  the  owner  of  such  ditch  for  the  viola- 
Hodgdon.  78  Me.  514,  7  Atl.  387;  tion  of  such  an  ordinance,  such  prose- 
Davis  v.  Callahan,  78  Me.  313,  5  Atl.  cution  tending  to  impair  vested 
73;  McClure  v.  Livermore,  78  Me.  rights,  and  inflict  irreparable  injury 
390,  6  Atl.  11.  And  see  Wright  v.  without  authority  of  law.  Platte  & 
Griffey,  147  111.  496,  35  N.  E.  732.  D.  Milling  Co.  v.  Lee,  2  Colo.  App. 

36.  Mayor,    etc.,    v.    Radecke,    49  184,  29  Pac.    1036. 

Md.  218.     And  see  Smith  v.  Bangs,  37.  §§   58-60  ante. 

15  111.  399;  Cape  May,  etc.,  R.  Co.  v.  38.  New  Home  Sewing  Mach.  Co. 

Cape  May  City,  35  N.  J.  Eq.  419.  v.  Fletcher,  44  Ark.   139. 

A  city  which,  by  an  illegal  or-  39.  Waters  Peirce  Oil  Co.  v.  Lit- 

dinance,  requires    a    ditch  con-  tie  Rock,  39  Ark.  412.     On  the  same 

strncted     through    lands     embraced  point  see  Portis  v.  Fall,  34  Ark.  375; 

within    the     public     domain     of    the  Medical  Institute  v.  Hot  Springs,  34 

United  States,  prior  to  such  lands  be-  Ark.   559;   Taylor  v.   Pine  Bluff,  34 

ing  embraced  within  the  city  limits,  Ark.  603. 

to  be  so  confined  and  reconstructed,  40.  Northern  Pac.  R.  Co.  v.  Can- 
by  fluming  or  otherwise,  as  to  pre  non,  49  Fed.  517. 

875 


£  576  Staying  Actions  am,  Si  its. 

has  commenced  in  the  wrong  forum,  abandon  his  action  at  law, 
and  begin  again  in  equity.41  There  an-,  however,  some 
in  which  a  defendant  will  be  restrained  from  Betting  up  a  certain 
defense,  on  the  ground  that  it  would  be  inequitable;  for  instance, 
whore  the  defendant  has  obtained,  by  fraud,  a  receipt  or  discharge, 
of  which  he  is  seeking  to  avail  himself  in  an  action  at  law."  So 
where  a  mortgagee  is  induced,  by  the  mortgagor's  untrue  repre- 
sentations, as  to  the  condition  of  the  title  to  a  parcel  of  land  or 
the  correctness  of  antecedent  proceedings,  requisite  to  vest  tho 
title  to  it,  to  discharge  the  mortgage  d<  bt,  and  to  give  a  release  of 
the  mortgage,  in  consideration  of  a  deed  to  said  land,  and  the 
mortgagee  in  fact  gets  nothing  by  the  d  ed.  and  his  debt  is  not 
paid,  he  may  maintain  an  action  to  foreclose  the  mortgage  and  to 
restrain  the  mortgagor  from  using  the  release  as  a  defense  therein, 
\if  innocent  parties  have  not  in  the  meantime  acqnired  an  interest 
/in  the  mortgaged  premises.43 

§576.  Same  subject;  enjoining  married  woman. — Where  a 
wife  made  her  promissory  note  to  her  husband's  order,  and  de- 
livered it  to  him,  to  enable  him  to  procure  its  discount,  and  with 
the  proceeds  pay  his  own  debt,  and  the  husband  applied  for  its 

41.  Jones  v.   Ramsey,  3    111.   App.  title  to  all   the  goods.     Held,  that  a 

303.     A   mortgagee     of    a     stock    of  court  of  equity  will  not  interfere  to 

goods,  which  by  agreement  had  been  restrain  such  legal  defense  to  the  ac- 

intermingled  and  confused  with  after-  tion  at  law.    Tyson  v.  Weber,  81  Ala. 

acquired  goods,  as  to  which  latter  he  470,  2  So.  901. 

never  had  actual  possession,  and  only  42.  Stewart  v.  Railway  Co.,  2 
an  equitable  title,  brought  an  action  DeG.,  J.  &  S.  319.  If,  in  such  a  case, 
©f  detinue,  and  seized  all  the  goods,  the  receipt,  though  purporting  to  be 
and  while  that  action  was  pending  in  full  accord  and  satisfaction,  was 
filed  a  bill  in  equity  to  foreclose  the  not  intended  to  be  so,  and  was  not 
mortgage,  alleging  his  inability  to  fraudulently  procured,  and  no  fraud- 
distinguish  the  original  stock  of  ulent  use  is  attempted,  equity  will 
goods  from  those  after-acquired;  that  not  interfere,  but  will  leave  the  facts 
the  defendant,  the  mortgagor,  pos-  to  be  determined  by  a  jury.  Lee  v. 
sesses  and  withholds  the  only  evi-  Railway  Co.,  L.  R.  6  Ch.  App.  527. 
dence  by  which  they  can  be  distin-  43.  Lovell  v.  Wall,  31  Fla.  73,  12 
guished;  and  praying  that  the  de-  So.  659.  And  see  Grimes  v.  Kimball. 
fendant  may  be  enjoined  from  setting  3  Allen.  518;  Freeholders  v.  Thomas, 
up,  as  a  defense  in  the  detinue  suit,  20  N.  J.  Eq.  39.  Mistakes  as  to  the 
that  the  mortgagee  has  not  the  legal  condition   of  one's   title,  or  the  cor- 

876 


Staying  Actions  and  Suits. 


§  576a 


discount  to  a  bank  official,  who  had  notice  that  the  note  was  made 
without  consideration  and  for  discount,  but  did  not  have  notice 
that  the  proceeds  were  to  be  applied  for  the  husband's  benefit, 
and  the  bank  official  offered  to  discount  it  by  a  check  to  the  wife's 
order,  which  the  husband  accepted,  and  afterwards  procured  his 
wife  to  indorse  and  deliver  it  to  him,  she  knowing  that  it  was  the 
proceeds  of  the  discount  of  her  note,  it  was  held  that  the  wife  was 
estopped,  and  should  be  enjoined,  from  setting  up  against  the  bank 
that  she  was  a  mere  surety  on  the  note,  and  that  the  note  was  a 
contract  made  by  her  with  her  husband,  and  therefore  void  at  law; 
for  to  permit  her  to  make  such  defenses  would  enable  her  to  make 
use  of  the  State  enabling  statute  to  practice  a  fraud.44 

§  576a.  Where  adequate  remedy  at  law.— As  we  have  stated 
elsewhere",  it  is  a  general  rule  that  an  injunction  will  not  be  granted 

rectness  or  regularity  of  antecedent 
proceedings,  may  be  classed  with  mis- 
takes of  fact,  and  are  properly  re- 
lieved from,  where  the  equity  is  clear. 
Gerdine  v.  Menage,  41  Minn.  417,  43 
N.  W.  91 ;  Geib  v.  Reynolds,  35  Minn. 
331,  28  N.  W.  923:  Cobb  v.  Dyer,  69 
Me.  494. 

44.  Hackettstown     Nat.    Bank    v. 
Ming,  52  N.  J.  Eq.  156,  27  Atl.  920, 
per  Pitney,  V.  C:     "The  bank  offi- 
cers had  the  right  to  presume  that 
the  wife  was  acquainted  with  mercan 
tile   law,   and   knew  what   would  be 
the  effect  of  her  indorsement  of  the 
rheck.     She  is  fairly  chargeable  with 
such  notice   after  signing  a   promis- 
sory note  as  maker,  and  her  evidence 
shows  that  she  understood  the  nature 
and  value  of  the  check  and  the  imme- 
diate effect  of  her  indorsement.    The 
drawing  of  the  check  to  the  order  of 
the  wife,  and  handing  it  to  the  hus- 
band, was  a  mere  offer  of  a  loan  to 
her  on  the  note.     Until  she  accepted 
that  offer,  and  used  the  check  by  in- 
dorsing it,  the  contract  of  discount- 


ing  or  lending  was  merely  executory. 
If    she    refused    to    accept    it,    the™ 
would  be  no  lending  of  money,  and 
her  husband  would  be  entitled,  upon 
a  return  of  the  check  to  the  bank,  to 
have  the  note  returned  to  him.     But 
the    contract    was     fully    completed 
when  she  accepted  and  indorsed  tha 
check,  and  was  then,  in  my  judgment, 
a  contract  of  loaning  from  the  bank 
to   Mrs.   Ming;    as   clearly   so,   as   it 
seems  to  me,   as  if  she   had  herself 
presented  the  note  for  discount  to  the 
bank    officer,    and    had    received    the 
proceeds  of  the  discount  in  money  in 
her  own  hands,  or  had  received  credit 
for  it,  as  in  Bank  v.  Craig,  1  N.  J. 
Law.  Jour.  153,  on  the  books  of  the 
bank.     She  thereby  became  the  bor- 
rower of  the   money,   and  liable  as 
such  to  the  bank;  and  she  could  not, 
as  against  the  bank,  change  her  posi- 
tion to  one  of  suretyship  by  handing 
the  proceeds  to  her  husband  for  hia 
own  personal  use.     To  authorize  her 
to  do  so  would  be  to  enable  her  to 
make  use  of  the  enabling  statute  to 


877 


§577 


Staying  Actions  and  Suits. 


to  a  party  who  has  an  adequate  remedy  at  la\v.<5  And  a  person  can 
not  invoke  the  jurisdiction  of  a  court  of  equity  to  stay  an  action 
at  law  where  the  remedy  at  law  is  adequate  and  complete.46  But 
though  there  may  bo  a  remedy  at  law  yet  if  the  remedy  at  equity 
is  more  complete  and  perfect  than  that  at  law  a  court  of  equity 
will  generally  enjoin  an  action  at  law  so  that  the  enlire  controversy 
may  be  settled  in  one  proceeding  in  the  equitable  court.47 

§  577.  Defensible  action  at  law  not  enjoined. — Where  defend- 
ant in  a  pending  action  at  law  has  a  good  defense  thereto  which  is 
equally  effective  in  that  action  as  in  equity,  it  is  a  general  rule 
that  the  action  will  not  be  enjoined/8  and  still  lcs6   where  the 


practice  a  fraud.  But  as  the  form 
of  the  contract  is  one  of  a  promise  by 
the  wife  to  the  husband,  by  him  as- 
signed to  the  bank,  the  latter  can 
have  no  remedy  at  law,  but  must 
come  to  this  court  for  relief.  Bunk  v. 
Brewster,  49  N.  J.  Law,  23',  12  Atl. 
769;  Gould  v.  Gould,  35  N.  J.  Eq.  37; 
Id.  562.  I  think  it  worthy  of  re- 
mark that  if  the  defendant  had  so 
framed  the  rule  opening  the  judg- 
ment as  to  confine  her  defense  at  law 
to  the  merits,  and  had  refrained  from 
pleading  that  the  contract  was  be- 
tween husband  and  wife,  and  there- 
fore void,  the  merits  of  the  case 
might,  as  it  seems  to  me,  have  been 
dealt  with  at  law.  It  is  certainly 
wholly  the  fault  of  the  defendant 
that  the  complainant  was  driven  into 
this  court,  and  the  result  is  that  she 
must  be  bound  by  its  finding.  Hav- 
ing been  deprived  of  the  opportunity 
to  prove  its  case  at  law,  and  com- 
pelled to  prove  it  here,  or  not  at  all, 
it  would  be  gross  injustice  to  com- 
pel it  to  prove  it  over  again  in  the 
law  court,  in  order  to  obtain  the 
fruit  of  its  judgment  there.  I  will 
advice  a  decree  in  favor  of  complain- 
ant, that  the  defendant  De  enjoined 
from  setting  up  any  defense  at  the 


trial   of  the  action   at  law,  and   that 
complainant  recover  its  costs." 

45.  See  §  26  herein. 

46.  Machem  v.  Machem,  28  Ala. 
374.     See  following  section  herein. 

47.  National  Bank  of  Athens  v. 
Carlton,  96  Ga.  469,  23  S.  E.  388; 
Lehigh  Valley  R.  R.  Co.  v.  Society  for 
Establishing  Useful  Manufactures,  30 
X.  J.  Eq.  145;  Henwood  v.  Jarvis,  27 
N.  J.  Eq.  247. 

48.  United  States. — Scottish  Union 
&  N.  I.  Co.  v.  Bowland,  196  U.  S. 
611,  25  S.  Ct.  345,  49  L.  Ed.  619; 
Dewees  v.  Reinhard,  165  U.  S.  386, 
17  S.  Ct.  340,  41  L.  Ed.  757;  Camp 
bell  v.  Golden  Cycle  M.  Co.,  141  Fed. 
610,  73  C.  C.  A.  260;  Palmer  Pneu- 
matic T.  Co.  v.  Lozier,  69  Fed.  346: 
Northern  Pac.  R.  Co.  v.  Cannon,  49 
Fed.  517. 

Alabama. — Murray  v.  Barnes  (Ala. 
1906),  40  So.  348;  Johnson  v.  Old- 
ham (Ala.  1906),  40  So.  213;  Rucker 
v.  Morgan,  122  Ala.  308,  25  So.  242: 
Simmons  v.  Williams,  27  Ala.  507. 

California. — Waymire  v.  San  Fran- 
cisco &  S.  M.  Ry.  Co.,  112  Cal.  646. 
44  Pac.   1086. 

Connecticut. — Welles  v.  Rhodes,  59 
Conn.  498,  22  Atl.  286;  Hood  v.  New 
York  &  N.  H.  R.  Co.,  23  Conn.  609. 


878 


Staying  Actions  and  Suits.  §  57T 

disclosed  defense  is  without  merits  both  in  law  and  equity.  Thu* 
equity  will  not  enjoin  the  prosecution  of  a  legal  action  on  a  con- 
tract for  sinking  a  well  because  of  the  contractor's  misrepresenta- 
tions as  to  its  cost,  and  the  depth  it  would  be  necessary  to  go  in 
order  to  get  a  sufficient  water  supply,  as  these  are  mere  expres- 
sions of  opinion,  and  no  ground  of  defense;  and  a  misrepresenta- 
tion as  to  the  price  for  which  the  contractor  has  done  similar  work 
for  third  persons  may  be  set  up  as  a  defense  to  the  legal  action, 
and  therefore  equity  will  not  restrain  its  prosecution.49    And  non 


Delaware. — Burton  v.  Miller,  6  Del. 
Ch.  403,  33  Atl.  G75. 

Florida. — Peacock  v.  Irvine  (Fla. 
1907),  42  So.  894;  Peacock  v.  Feas- 
ter  (Fla.  1906),  42  So.  889;  Cohen  v. 
L'Engle,  29  Fla.  579,  11  So.  47. 

Georgia. — Waters  v.  Waters,  124 
Ga.  349,  52  S.  E.  425;  Mallory  v. 
Cowart,  90  Ga.  000,  16  S.  E.  G5S. 

Illinois. — Cook  County  v.  Chicago, 
158  111.  524,  42  N.  E.  67;  McCormick 
v.  Little,  85  111.  62,  28  Am.  Rep.  010; 
McCulIon  v.  Chidester,  63  111.  477; 
Mexican  Asphalt  Co.  v.  Mexican  As- 
phalt Par.  Co.,  61  111.  App.  354. 

Indiana. — Martin  v.  Orr,  96  Ind. 
27;  Hartman  v.  Heady,  57  Ind.  545. 

Iowa. — Smith  v.  Short,  11  Iowa, 
623. 

Maryland. — Mountain  Lake  Park 
Ass'n  v.  Shartzer,  83  Md.  10,  34  Atl. 
536;  Bowen  v.  Gent,  54  Md.  555. 

Massachusetts. — Pay  son  v.  Lamson, 
134  Mass.  593,  45  Am.  Rep.  348. 

Michigan. — Pardridge  v.  Brennan, 
C4  Mich.  575,  31  N.  W.  524. 

Mississippi. — New  Orleans  Shell 
Lime  Mfg.  Co.  v.  Lowenstein,  11  So. 
187. 

New  Jersey. — United  New  Jersey 
R.  &  C.  Co.  v.  McCulley  (N.  J.  1904), 
59  Atl.  229;  Screw  Mower  &  Reaper 
Co.  v.  Mettler,  26  N.  J.  Eq.  264;  Em- 
ery v.  Vansickel,  15  N.  J.  Eq.  144. 

New  York. — Savage  v.  Allen,  54  N. 


Y.  458;  Minturn  v.  Farmers  Loan  &. 
T.  Co.,  3  N.  Y.  498;  Bowman  v.  Pof- 
fenberg,  103  N.  Y.  Supp.  245;  Conk- 
lin  v.  Secor  Sew.  Mach.  Co.,  55  How. 
Prac.  269;  Kip  v.  Mew  York  &  H.  R. 
Co.,  G  Hun,  24;  In  re  Jay,  6  Abb. 
Prac.  293;  Bliss  v.  Murray,  7  N.  Y. 
Supp.  917,  17  Civ.  Proc.  R.  64. 

Rhode  Island. — Wilbor  v.  Watter- 
son,  8  R.  I.  166. 

South  Carolina. — Schnell  v.  Schro- 
der, Bailey's  Eq.  334. 

Tennessee. — Huddleston  v.  Wil- 
liams,  1  Heisk.  579. 

Texas. — Gibson  v.  Moore,  22  Tex. 
611;  York  v.  Gregg,  9  Tex.  85. 

Vermont. — Westminster  v.  Wil- 
lard,  65  Vt.  266,  26  Atl.  952;  Saf 
ford  v.  Gallup,  53  Vt.  291;  Holmes  v. 
Clark,  46  Vt.  22. 

Virginia. — Virginia  Min.  Co.  v. 
Wilkinson,  92  Vt.  98,  22  S.  E.  839. 

West  Virginia. — Moore  v.  McNutt, 
41  W.  Va.  695,  24  S.  E.  682. 

Wisconsin. — Pennoyer  v.  Allen,  50 
Wis.  308,  6  N.  W.  887. 

See  §  27  herein. 

Action  on  a  bond  will  not  be  en- 
joined because  it  was  obtained  by 
fraud,  that  being  a  defense  at  law. 
Dorsey  v.  Monnett  (Md.),  20  Atl. 
196;  Edelin  v.  Sanders,  8  Md.  130. 

49.  Roemer  v.  Condon,  45  N.  J. 
Eq.  234,  19  Atl.  604. 


879 


§  577 


Staying  A<  nova  am>  Si  i  re. 


performance  of  a  contract  for  the  sale  of  lands  or  the  fact  that  the 
contract  was  void  under  the  statute  of  frauds  are  not  grounds  for 
enjoining  an  action  for  the  price  of  the  land  as  these  matters  may 
be  set  up  in  defense  to  such  action.50  Xor  will  equity  enjoin  an 
action  at  law  brought  on  a  satisfied  judgment  as  the  defense  is 
available  at  law,51  or  enjoin  an  action  for  the  appointment  of  a 
receiver  where  the  objection  thereto  is  so  available.52  And  thu 
general  rule  has  also  been  applied  in  patent  cases,'3  and  in  actions 
of  ejectment,64  and  of  forcible  entry  and  detainer.5"'  And  an  action 
to  recover  taxes  from  a  foreign  corporation  on  personal  property 
within  the  State  will  not  be  enjoined  on  the  ground  of  the  non- 
liability of  the  corporation  as  such  objection  is  available  as  a 
■  1<  I'i  use  to  the  action  at  law.56  And  equity  will  not  interfere  by 
injunction  to  restrain  proceedings  at  law  when  all  the  matters  of 
defense  are  as  available  at  law  as  in  equity,  although  complicated 
and  more  difficult  of  presentation.57     Thus  a  suit  in  equity  for 


50.  Virginia  Min.  Co.  v.  Wilkinson, 
92  Va.  98,  22  S.  E.  839. 

51.  Clark  v.  Clapp,  14  R.  I.  248. 

52.  Columbia  Bldg.  &  L.  Ass'n  v. 
Grange,  77  Fed.  798. 

5.3.  Palmer  Pneumatic  Tire  Co.  v. 
Lozier,  69  Fed.  346. 

54.  United  States. — Campbell  v. 
Golden  Cycle  M.  Co.,  141  Fed.  610,  73 
C.  C.  A.  260. 

Alabama. — Murray  v.  Barnes  (Ala. 
1906),  40  So.  348;  Holt  v.  Pickett, 
111  Ala.  362,  20  So.  432. 

Arkansas. — Earle's  Aduix.  v. 
Horles,  Admr.,  31  Ark.  473. 

Georgia. — Alexander  v.  Biggers,  43 
Ga.  161. 

Illinois. — Cook  County  v.  Chicago, 
358  111.  524,  42  N.  E.  67. 

Maryland. — Mountain  Lake  Park 
Ass'n  v.  Shartzer,  83  Md.  10,  34  Atl. 
536;  Bowen  v.  Gent,  54  Md.  555. 

A'euj  Jersey. — Morris  Canal  &  B. 
Co.  v.  Dennis,  12  N".  J.  Eq.  249. 

Pennsylvania.— Appeal  of  Pittsburg 


<fe  A.  D.  Y.  Co.,  123  Pa.   St.  250,   16 
Atl.  625. 

Vermont. — Barrett  v.  Sargeant,  18 
Vt.  365. 

55.  Freeman  v.  Temanus,  12  Fla. 
393;  Winterfield  v.  Stauss,  24  Wis. 
394. 

56.  Scottish  Union  A  N.  I.  Co.  v. 
Bowland,  196  U.  S.  611,  25  S.  Ct.  345, 
49  L.  Ed.  619. 

57.  Pullman  Palace  Car  Co.  v.  Cen- 
tral Transp.  Co.,  34  Fed.  357.  The 
defendant  in  an  action  upon  a  judg- 
ment which  was  void  for  want  of  ser- 
vice was  enjoined  from  setting  up  the 
invalidity  thereof,  because,  while  pro- 
curing a  discharge  in  bankruptcy,  ho 
obtained  substantial  benefits  by  con- 
tending that  the  judgment  was  valid. 
Held,  that  he  was  not  entitled  to  a 
suspension  of  the  injunction  or  to  a 
stay  of  proceedings  in  that  action 
pending  an  appeal  from  the  injunc- 
tion decree,  since,  in  case  of  reversal 
the  court  would  so  mould  its  judg 


S80 


Staying  Actions  and  Suits.  §  578 

an  injunction  to  restrain  the  prosecution  of  an  action  of  trover 
for  goods  sold  and  delivered,  brought  against  complainant  by  the 
special  administrator  of  the  estate  of  a  person  deceased,  on  the 
ground  that  the  complainant  had  paid  the  purchase  price  of  the 
goods,  after  the  death  of  the  intestate,  to  a  clerk  of  the  firm  of 
which  the  intestate  was  the  principal  member,  on  the  assurance 
that  he  had  authority  to  sell  and  receive  payment  for  the  goods, 
and  in  the  belief  that  he  was.  a  partner  in  the  firm,  presents  no 
grounds  for  equitable  interference,  as  the  facts  are  available  as  a 
defense  to  the  action  of  trover.58  And  where  a  bill  is  filed  to  set 
aside  void  securities  and  complainant  is  afterwards  sued  at  law  on 
them,  such  suit  will  not  be  enjoined,  as  he  has  a  good  legal  defense 
therein.59  And  an  action  will  not  be  enjoined  for  the  reason  that 
defendant  is  not  permitted  to  make  a  defense  therein,  the  right 
to  which  he  has  forfeited  by  his  own  misconduct.60 

§  578.  Same  subject;  court's  discretion. — While  an  injunction 
against  an  action  at  law  may  sometimes  be  allowed  and  retained 
in  aid  of  the  main  purpose  of  the  bill  and  to  settle  the  whole  con- 
troversy in  one  suit,  notwithstanding  there  may  be  a  valid  defense 
at  law  to  the  suit  enjoined,  it  is  not  matter  of  absolute  right  that 
the  injunction  should  be  so  retained.61  And  an  action  at  law  to 
enforce  a  forfeiture  on  account  of  the  breach  of  a  condition  prece- 
dent will  not  be  restrained  where  the  plaintiff  in  such  action  him- 

ment,  should  the  plaintiff  obtain  one,  also  sued  for  a  divorce,  and  pending 
in  the  action  at  law  commenced  by  this  action  the  decree  divorcing  him 
her,  as  to  allow  the  defendant  the  from  his  former  wife  was,  at  her  in- 
full  advantage  of  his  defense.  Wake-  stance,  annulled  in  toto,  which  he 
lee  v.  Davis,  48  Fed.  612.  sought  to  set  up  as  a  defense,  in  the 

58.  Pardridge  v.  Brennan,  64  Mich,  action  by   his   second  wife,   but   waa 
575,  31  N.  W.  524.  refused   leave  to  file  an  amended  or 

59.  New  York,  etc.,  Co.  v.  Ameri-  supplemental  answer  for  that  pur- 
can,  etc.,  Co.,  11  Paige   (N.  Y.),  384.  pose.     Held,  no  ground  to  enjoin  the 

60.  VonProchazka  v.  VonPro-  second  wife's  action.  And  see  Lam- 
chazka,  3  N.  Y.  Supp.  301.     In  this      bert  v.  Lambert,  5  Ir.  Eq.  339. 

case   it   appeared   that   plaintiff  was  61.  Hartley  v.  Matthews,  96  Ala, 

divorced    from    his   wife   at   her   suit      224,  11  So.  452. 
and  married  again.     His  second  wife 

881 
56 


$  579  Staying  Actions  and  Suits. 

self  caused  or  knowingly  aided  in  causing  the  failure  to  perform, 
as  this  fact  would  be  available  in  defense  to  such  action  at  law." 

§579.  Same  subject;  summary  proceedings. — Under  a  Code 
provision  that  before  final  order  summary  proceedings  shall  not  be 
stayed  by  any  court  or  judge,  except  in  a  case  where  an  injunction 
would  be  granted  to  stay  the  proceedings  in  an  action  of  ejectment, 
an  injunction  should  not  be  granted  on  the  grounds  that  the  peti- 
tion was  not  properly  verified,  or  did  not  describe  the  premises, 
or  did  not  state  the  interest  of  the  petitioner,  or  that  the  defense 
of  another  action  pending  was  not  allowed,  as  all  these  are  legal 
defenses,  available  on  the  trial,  and  reviewable  on  appeal.53  And 
it  has  been  decided  that  the  only  case  in  which  the  court  will  inter- 
fere by  injunction  to  stay  summary  proceedings  between  landlord 
and  tenant  is  first,  where  there  has  bet  n  fraud  of  collusion  ;  second, 
where  the  justice  has  not  obtained  jurisdiction,  by  want  of  tho 
necessary  preliminary  steps  or  other  causes,  and  third,  where  the 
tenant  from  the  peculiar  circumstances  of  the  case,  is  precluded 
from  setting  up  his  defense  before  the  justice.64  Where  one  com- 
mences an  action  by  warrant  to  turn  a  party  out  of  certain  land, 

62.  Wingo  v.  Hardy,  94  Ala.   184,  conditions    would    be    to    permit    the 

191,    10    So.    659,    per    Stone,    C.    J.:  wrong-doer  to  take  advantage  of  his 

"  Does  the  bill  contain  equity,  in  that  own  wrong.     McLendon  v.  Godfrey,  3 

phase  of  it  which  sought  and  obtained  Ala.  181;   Sprague  v.  Morgan,  7  Ala. 

an  injunction  against  the  prosecution  952;    Eads  v.  Muipliy,  52   Ala.   520; 

of  the  suits  in  unlawful  detainer?    If  Borst  v.  Simpson,  90  Ala.  373,  7  So. 

Hardy  was  hindered  and  prevented  in  814.      This   defense   is    legal,   and,   if 

the  performance,  through  Perkins,  of  proved,  will  be  an  answer  to  the  ac- 

bis  contract  to  have  the  works  com-  tions    of    unlawful    detainer.      Under 

pleted    and    in   operation   by    October  these  principles  the  bill  of  complaint 

15,  1890,  by  collusion  and  fraudulent  in    this    case    shows    no    ground    for 

combination  between  Wingo  and  Per-  equitable    relief,    and    the    injunction 

kins,  could  that  afford  him  excuse  for  ought  to  have  been  dissolved  on  that 

appealing  to  the  chancery   court  for  ground." 

relief?    We  think  not.    No  one  can  in-  63.  Bliss  v.  Murray,  7  N.  Y.  Supp, 

sist  on  a  forfeiture  for  failure  to  per-  917,  17  Civil  Proc.  Rep.  64;   Bean  v. 

form  a  condition  precedent,  if  he  him-  PettingfU,   2    Abb.    Pr.     (N.    S.)    58, 

self   has   caused,    or    intentionally   or  aff'd  7  Robt.  7. 

■knowingly      aided     in     causing      the  64.  Bokee  v.  Hamersley,   16  How- 

failure.    To  allow  a  recovery  in  such  Prac.  (N.  Y.)  461. 

882 


Staying  Actions  and  Sots.  §  580 

under  the  Georgia  Code  providing  for  the  ejectment  of  a  tenant 
holding  over,  and  the  party  against  whom  it  is  brought  files  a  bill 
for  injunction,  alleging  that,  by  reason  of  her  poverty  she  is  unable 
to  give  the  bond  provided  in  cases  where  the  tenant  wishes  to 
retain  possession,"  and  denying  the  plaintiff's  title,  or  that  he  is 
her  landlord,  and  setting  forth  her  title  independent  of  him,  and 
alle-ing  that  he  is  insolvent,  and  unable  to  respond  in  damages 
for  his  wrongful  act  in  turning  her  out  of  possession  of  the  land, 
a  demurrer  to  the  bill  for  want  of  equity,  and  because  complain- 
ant has  a  full  and  adequate  remedy  at  law,  is  properly  overruled 
But  in  such  a  case  the  action  by  warrant  could  probably  not  be 
enjoined  if  the  existence  of  the  relation  of  landlord  and  tenant 
were  not  denied  and  the  landlord's  title  was  undisputed.67 

§580  Same  subject;  mandamus  proceedings—Mandamus 
proceedings  will  not  be  enjoined  when  the  defenses  against  such 
proceedings  can  be  made  therein,  and  a  special  appeal  is  provided 
by  statute.68  The  English  rule  has  been  that  an  injunction  would 
not  be  granted  to  restrain  mandamus  proceedings  in  a  court  of 
law.69    And  the  rule  in  this  country  is  that  the  double  remedy  of 

65.  Sections  4077-4079.  69.  Montague   v.   Dudman    2  Ves. 

66.  Gilmore  v.  Wells,  78  Ga.  197.  Sen.    396,    398,   per   Hardwicke,    Ch^ 

67  Hall  v.  Holmes,  42  Ga.  179;  "This  court  has  no  jurisdiction  to 
Cherry  v  Ware,  63  Ga.  289;  Huff  v.  grant  an  injunction  to  stay  proceed- 
Marknam,  71  Ga.  557.  ing"  on  a  mandamus     .    .    .    The  rea- 

68  People  v.  Wasson.  64  N.  Y.  son  is  that  a  mandamus  is-  not  a 
167  170,  per  Curium:  "Wasson  had  writ  remedial  or  mandatory.  It  is 
commen  ed  proceedings  to  enforce  vested  in  the  King's  Superior  Court 
payment  of  the  awar/by  mandamus.  of  Common  Law  to  comP< d  in ienor 
in  those  proceedings  the  auditor,  on  courts  to  do  something  relative  to  the 
behalf  of  this  State,  could  have  set  public.  That  court  has  a  grea  lati- 
vip  any  defense  legal  or  equitable,  tude  and  discretion  in  cases  o  that 
^hich  the  State  had  going  to  the  va-  kind;  can  judge  of  a  1  tie  circun, 
lidity  of  the  award.  There  are  no  al-  stances,  and  is  not  bound  by  such 
legation,  in  the  complaint,  and  no  strict  rules  as  in  cases  of  private 
p;oo  that  plaintiff's  right  could  not  rights.  That  therefore,  -st  be  given 
he  perfectly  protected  in  those  pro-  up  as  no  color  for  such  an  injunc- 
ceedings,  and  they  should  not,  there-  tion." 

fore,  be  enjoined  in  a  suit  in  equity." 

883 


§531 


Staying  Actions  and  Suite. 


injunction  and  mandamus  is  not  appropriate  for  one  and  the  same* 

70 

case. 

§  581.  Enjoining  condemnation  proceedings Where  con- 
demnation proceedings  are  sought  to  be  enjoined  on  the  ground 
that  the  land  had  already  been  so  appropriated  to  a  public  use  by 
defendant  as  not  to  be  available  to  plaintiff,  the  injunction  is 
held  not  to  be  properly  allowed,  since  that  defense  could  have 
been  made  in  the  condemnation  proceedings.71  And  the  general 
rule  is  that  condemnation  proceedings  will  not  be  enjoined  where 
the  objection  to  them  can  be  made  in  the  court  where  those  pro- 
ceedings are  taken.72  Thus  it  is  no  ground  for  enjoining  the 
prosecution  of  condemnation  proceedings  that  there  has  been  a 
previous  condemnation  of  the  same  land  for  the  same  purpose, 
resulting  in  the  verdict  of  a  jury  assessing  compensation,  since 
that  fact  constitutes  an  adequate  legal  defense,  which  can  be  taken 


70.  Whigham  v.  Davis,  92  Ga.  574, 
18  S.  E.  548;  Dibble  v.  Pease,  59  Ga. 
618.  See  First  Nat.  Bank  v.  Society 
for  Savings,  80  Fod.  581,  25  C.  C.  A. 
466.    See,  also,  §  9  herein. 

71.  Waterloo  Water  Co.  v.  Hoxie, 
89  Iowa,  317,  56  N.  W.  499,  per 
Granger,  J.:  "Appellees  insist  that 
equity  will  not  entertain  the  suit  to 
determine  the  merits  of  the  case  pre- 
sented, because  the  plaintiff  has  other 
available  remedies  to  which  it  should 
resort,  and  among  them  it  is  urged 
that  the  proceeding  which  it  seeks  to 
enjoin  affords  such  a  remedy.  The 
particular  ground  upon  which  the  aid 
of  a  court  of  equity  is  invoked  is  that 
the  proceedings  to  condemn  the  land 
are  unauthorized,  because  the  land  is 
already  devoted  to  a  public  use,  and, 
as  we  understand,  that  it  would  be 
unlawful  to  proceed  to  condemn  it, 
even  if  needed  by  the  railway  com- 
pany. The  proposition  is  one  in  dis- 
pute between  the  parties,  and  is  to 
be    settled    by    adjudication.      Could 


it  be  properly  determined  in  the  con- 
demnation proceeding?  It  seems  to 
us  that  the  question  is  quite  definitely 
answered  in  Railway  Co.  v.  Donnell, 
77  Iowa,  221,  42  N.  W.  176.  .  .  . 
Our  conclusion  is  that  in  the  proceed- 
ings sought  to  be  enjoined  ample  rem- 
edy will  be  afforded  to  protect  plain- 
tiff  against  any  unlawful  appropria- 
tion of  the  land,  and  that  the  injunc- 
tion was  properly  dissolved.  See,  in 
support  of  the  conclusion  to  a 
greater  or  less  extent,  Central  Iowa 
R.  Co.  v.  Moulton  &  A.  R.  Co.,  57 
Iowa,  249,  10  N.  W.  639;  Stough  v. 
Railway  Co.,  71  Iowa,  641,  33  N.  W. 
149;  Kip  v.  Railroad,  6  Hun,  24.  The 
order  of  the  District  Court  dissolving 
the  injunction  is  affirmed."  See,  also, 
the  important  case  of  Rockwell  v. 
Bowers,  88  Iowa,  88,  55  N.  W.  1. 

72.  Western  Maryland  R.  Co.  v. 
Patterson,  37  Md.  125,  per  Bowie,  J.: 
"  There  is  no  necessity  for  an  injunc- 
tion when  the  courts  peculiarly 
vested  with  authority  over  the  sub- 


884 


Staying  Actions  and  Suits. 


§  582 


advantage  of  by  motion  in  the  second  condemnation  suit.73  And 
condemnation  proceedings  should  not  be  enjoined  while  they  are 
still  pending  in  a  special  statutory  tribunal,  and  there  is  not  only 
a  right  of  appeal  from  the  commissioners'  report,  but  an  ample 
legal  remedy  by  certiorari.74 

§  582.  Same  subject;  where  injunction  proper. — Where  a  rail- 
road company  institutes  proceedings  to  condemn  land,  and  such 
proceedings  are  in  clear  violation  of  a  prior  contract  between  the 
railroad  company  and  the  land  owner,  the  latter  has  a  standing  in 
equity  to  enjoin  the  proceedings  until  the  covenants  of  the  contract. 


ject  are  competent  to  relieve,  and  it 
is  a  sufficient  ground  for  refusing  it 
that  the  complainant  has  an  ample 
remedy  at  law." 

73.  Chicago  R.  T.  &  P.  Ry.  Co.  v. 
Chicago  City,  143  111.  641,  32  N.  E. 
178,  per  Baker,  Jr.:  "Even  without 
regard  to  the  statute  that  the  first 
assessment  shall  be  final  and  conclu- 
sive as  to  the  amount  of  the  damages, 
both  reason  and  authority  would  lead 
to  the  conclusion  that  such  must  be 
the  law.  Hupert  v.  Anderson,  35 
Iowa,  578;  City  of  St.  Joseph  v. 
Hamilton,  43  Mo.  282 ;  Rogers  v.  City 
of  St.  Charles,  3  Mo.  App.  41." 

74.  Pennsylvania  R.  Co.  v.  Na- 
tional Docks,  56  Fed.  697,  per  Ache- 
son,  J. :  "  Nothing  is  better  settled 
than  the  rule  that  in  a  matter  not 
purely  ministerial,  but  involving 
judgment  and  discretion,  the  courts 
will  not  control  public  officers  or  in- 
ferior tribunals  in  the  exercise  of 
their  functions.  Gaines  v.  Thompson, 
7  Wall.  347.  Only  after  the  final  deci- 
sion of  such  special  tribunal  can  ju- 
dicial authority  be  regularly  invoked 
for  the  ratification  of  errors.  Id.; 
State  v.  Medical  Society,  35  N.  J. 
Law,  200.  Furthermore,  here  not 
only  is  there  the  right  of  appeal  from 
the  report  of  the  commissioners,  but 


an  ample  legal  remedy,  by  certiorari, 
is  open  to  the  complainant.  Van- 
wickle  v.  Railroad  Co.,  14  N.  J.  Law, 
162;  State  v.  Lord,  26  N.  J.  Law, 
140;  Swayze  v.  Railroad  Co.,  36  N. 
J.  Law,  295;  Lehigh  Val.  R.  Co.  v. 
Dover  &  H.  R.  Co.,  43  N.  J.  Law,  528. 
Says  Chancellor  Green,  in  Hoagland 
v.  Township  of  Delaware,  17  N.  J. 
Eq.  106,  114:  'The  Supreme  Court 
exercises  a  supervision  and  control 
over  all  inferior  tribunals  and  cor- 
porations, and  may  control  the  exer- 
cise of  their  powers,  so  far  as  may 
be  necessary  to  prevent  abuse,  to  pro- 
tect the  rights  of  the  citizens,  and  re- 
dress the  wrong  of  every  party  ag- 
grieved by  their  irregular  and  unlaw- 
ful action.'  And  because  the  remedy 
at  law,  by  certiorari,  is  adequate  and 
complete,  the  courts  of  New  Jersey 
refuse  equitable  relief  in  the  class  of 
cases  to  which  the  present  case  be- 
longs. Hoagland  v.  Township  of  Del- 
aware, supra;  Hoboken  Land  &  Imp. 
Co.  v.  City  of  Hoboken,  31  N.  J.  Eq. 
461.  But,  if  the  State  courts  will  not 
afford  the  complainants  relief  in 
equity,  neither  should  the  Circuit 
Court  of  the  United  States,  the  legal 
remedy  being  ample.  Ewing  v.  City 
of  St.  Louis,  5  Wall.  413." 


885 


583  Staying  Actions  and  Suits. 

arc  performed  or  the  contract  rescind*  d.1  And  where  a  land 
owner  contracted  to  convey  land  to  a  railroad  company  for  its 
right  of  way  od  condition  that  it  should  erect  and  maintain  a  side 
track  and  certain  buildings  thereon,  and  the  company  took  posses- 
sion, built  its  road,  and  attempted  the  performance  of  the  condi- 
tion, and  there  was  an  honest  difference  of  opinion  between  it  and 
the  owner  as  to  whether  the  condition  had  been  fully  performed, 
and  the  owner  instituted  condemnation  proceedings,  as  if  no  con- 
tract had  been  made,  and  the  railroad  company  applied  for  a  per- 
petual injunction  against  the  maintenance  of  such  proceedings,  it 
was  held  that  it  was  proper  to  restrain  the  owner  from  prosecuting 
his  action,  until  the  merits  of  the  injunction  suit  were  determined, 
as  it  was  doubtful  if  the  owner  ought  not  to  have  resorted  to  an 
action  for  damages,  or  an  action  of  ejectment.7* 

§583.  Enjoining  defensible  actions  at  law;  qualification  of 
rule. — In  some  cases  it  is  decided  that  while  a  defendant  in  an 
•action  at  law  is  quite  freely  permitted  to  come  into  a  court  of 
equity  for  some  discovery  or  particular  relief,  which  will  the  better 
.enable  him  to  make  his  defense  at  law,77  yet  where  the  object  is 
to  transfer  the  litigation  to  the  court  of  equity,  the  facts  must 
be  very  special,  and  the  equities  very  clear  and  urgent  to  authorize 
an  injunction  to  stay  the  legal  proceedings  before  judgment,  for 
the  reason  that  the  bill  is  under  the  control  of  the  complainant 
until  decree  rendered,  and  may  be  dismissed  after  years  of  delay, 
leaving  the  original  plaintiff  still  to  proceed  at  law.78  If  the  de- 
fenses set  up  in  the  bill  to  the  defendant's  claim  are  the  same  as 
those  made  in  the  suit  at  law,  or  are  such  as  can  only  be  made  in 
equity,  an  injunction  ought  not,  ordinarily,  to  be  granted  before 

75.  Semple   v.    Cleveland   &   P.   R.  Ch.  635;   Crane  v.  Bunnell,  10  Paige 
R.  Co.,  172  Pa.  St.  369,  33  Atl.  564.  (N.  Y.),  340;   Williams  v.  Sadler,  4 

76.  Harvey  v.  Kansas  N.  &  D.  Ry.  Jones  Eq.  (N.  C.)  378;  Hunt  v. 
Co.,  45  Kan.  228,  25  Pac.  578.     And  Sneed,  Phill.  Eq.   (N.  C.)   351. 

see  Kansas,  etc.,  R.  Co.  v.   Hopkins,  78.    Turner     v.     American     Bapt. 

18  Kan.  494;  St.  Joseph,  etc.,  R.  Co.  Union,    5     McLean,    349;     Melick    v. 

v.  Dryden,  11  Kan.  186.  Drake,     6     Paige      (N.     Y.),     471; 

77.  Chadwell   v.   Jordan,   2   Tenn.  Mathews  v.  Douglas,  Cooke,  136. 

886 


Staying  Actions  and  Suits.  §  584 

judgment  at  law;  that  is,  it  should  be  to  stay  execution,  and  not 
the  trial.79  And  in  such  cases  an  injunction  will  not  be  granted  to 
restrain  proceedings  at  law,  unless  the  party  seeking  it  will  close 
the  legal  contest  by  giving  judgment  in  the  action  at  law,  with  a 
stay  of  execution,  the  judgment  to  be  dealt  with  as  the  court  may 
thereafter  order.80  When  a  defendant  at  law  has  been  granted  an 
injunction  upon  condition  of  his  confessing  judgment  therein,  and 
the  injunction  is  dissolved  for  want  of  equity,  such  judgment 
should  be  required  to  be  withdrawn  in  order  that  the  plaintiff  at 
law  may  proceed  to  try  his  action  at  law  upon  the  merits.81 

§  584.  Partition  suits. — Where   a  bill  to  quiet  title  is  filed, 
showing  that  complainant  is  in  possession  of  the  land  described, 
with  other  allegations  sufficient  to  entitle  him  to  the  relief  claimed, 
and  afterwards  defendants  file  a  bill  for  the  partition  of  the  same 
lands,  to  which  the  complainant  in  the  first  bill  is  not  made  a 
party,  such  complainant  may,  without  becoming  a  party  to  the 
partition  suit,  have  it  restrained  until  his  suit  is   determined." 
And  where,  after  a  sister  of  deceased  began  her  action  for  parti- 
tion, the  executor  instituted  his  action  against  the  public  escheator 
for  the  partition  of  the  same  property,  ignoring  her  claim,  and 
then  answered  in  her  action  denying  that  she  had  any  interest  in 
the  property,  she  was  allowed  to  file  a  supplemental  complaint 
alleging  these  proceedings,  and  the  executor  was  enjoined  from 
proceeding  with  his  action,  and  especially  so,  after  notification  of 
escheat  filed  by  the  escheator.83    And  where  complainant  has  paid 
the  whole  price  of  real  property,  and  taken  the  title  to  himself  and 
the  defendant  jointly,  on  the  latter's  agreement  to  pay  one  half  of 

79.  Mutter  v.  Hamilton,  2  Hayw.  of  the  rule  in  the  text,  where  an  in- 

(N.  C.)  346;  White  v.  Steinwacks,  19  junction  to  stay  a  suit  at  law  upon  a. 

v   '    g5  note  was  asked  for.    Chadwell  v.  Jor- 

80    Jones  v.  Bassett,  2  Russ.  405;  dan,  2  Tenn.  Ch.  635. 
Drummond  v.   Pigou,    2    Myl.  &  K.  81.  Great  Falls  M'f'g  Co.  v.  Henry, 

168;  Warwick    v.    Norvell,    1    Leigh,  25     Gratt.     (Va.)     575;     Hooper    v. 

96  • '  Barnard  v.  Wallis,   1  Cr.  &  Ph.  Cooke,  25  L.  J.  Ch.  467. 
85-    Mackintosh    v.    Wyatt.    3    Hare,  82.  McCullough  v.  Absecom   Land 

562-    Carroll  v    Sands,  10  Paige    (N.  Imp.  Co.  (N.  J.  Eq.),  10  Atl.  606. 
Y.),'  298;  Ham  v.  Schuyler,  2  Johns.  8.3.  Muir  v.  Thomson,  28  S.  C.  499. 

Ch    (N   Y.)   140.    See  an  application 

887 


§  585  Staying  Actions  and  Suits. 

the  price,  and  complainant  has  also  paid  taxes  on  the  property  and 
made  improvements,  the  defendant  may  be  enjoined  from  prosecut- 
ing an  action  for  partition  until  he  repays  what  complainant  has 
advanced  for  him.84  As  real  estate  sold  by  a  commissioner  in  an 
action  for  partition,  is  subject  to  any  prior  judgment  lien  thereon, 
he  cannot,  in  the  absence  of  fraud  or  warranty  in  the  sale,  enjoin 
a  sale  by  the  sheriff  to  satisfy  such  lien.85  And  equity  will  not 
interfere  to  set  aside  an  award  for  partition  on  the  ground  that  it 
is  void  if  its  invalidity  will  appear  on  the  face  of  the  papers  when 
any  right  is  claimed  on  it.86  And  a  court  of  equity  will  not  restrain 
proceedings  at  law  for  partition,  unless  such  restraint  becomes 
necessary  to  protect  some  party  thereto  from  fraud,  or  to  secure  to 
him  some  clear  right  which  the  law  court  cannot  protect.87  Tin- 
New  York  courts  will  restrain  one  by  injunction  from  prosecuting 
a  partition  suit  in  another  State,  in  violation  of  an  agreement  that 
the  suit  should  be  brought  in  New  York,  and  his  objections  that 
the  New  York  courts  cannot  partition  lands  in  other  Stat* ■-.  and 
that  there  are  infants  who  were  not  parties  to  the  agreement,  are 
sufficiently  answered  by  the  fact  that  he,  as  a  party  to  the  agree 
ment,  is  estopped  from  denying  the  jurisdiction  of  the  courts  of 
New  York.88 

§585.  Same  subject;  concurrent  jurisdiction. — The  original 
jurisdiction  of  courts  of  equity  to  decree  partition  of  land  between 
coparceners  and  tenants  in  common,  resting  on  the  capacity  of  those 
courts  to  adjust  the  equities  of  parties,  and  grant  more  complete 
relief  than  courts  of  law,89  was  not  taken  away  by  the  Alabama 
Code;90  but  if  the  probate  judge  first  acquires  jurisdiction  by  the 
filing  of  a  proper  petition,  a  court  of  equity  will  not  interfere  with 
its  exercise  unless  upon  facts  of  special  equitable  cognizance,  which 

84.  Maloy  v.  Sloan,  44  Vt.  311.  87.  Hall  v.  Piddoek,  21  N.J.Eq.  311. 

85.  Wood  v.  Winings,  58  Ind.  322.  88.  Bowers  v.  Durant,  43  Hun  (N. 
And  see  Hammers  v.  Hanrick,  69  Tex.       Y. ) ,  348. 

412.  89.  Deloney     v.     Walker,   9    Port. 

86.  Meloy  v.   Dougherty,    1G   Wis.       (Ala.)    497. 

269.  90.  §§  3497-3513. 

888 


Staying  Actions  and  Suits.  §  586 

render  the  statutory  probate  jurisdiction  inadequate.91  But  if 
one  tenant  in  common  of  lands  makes  improvements  thereon,  with 
the  express  authority  or  the  consent  of  his  cotenant,  a  court  of 
equity  will,  in  decreeing  partition,  give  him  the  benefit  of  his 
improvements,  by  assigning  to  him  that  part  of  the  land  on  which 
they  are  situated,  and  in  such  case  may  enjoin  at  his  instance,  pro- 
ceedings before  the  probate  judge,  asking  a  sale  for  diversion.92 

§  586.  Enjoining  action  of  ejectment;  reforming  deed;  where 
vested  remainder. — An  action  of  ejectment  will  not  be  enjoined 
on  the  ground  that  defendant's  deed,  a  link  in  the  chain  of  plain- 
tiff's paper  title,  was  not  intended  to  include  the  lands  in  con- 
troversy, since  the  same  defense  might  be  made  to  the  action,  it 
further  appearing  that,  should  defendant  fail  on  the  merits  in 
the  injunction  suit,  she  might  still  defend  on  the  ground  of  adverse 
possession  at  the  time  of  the  intermediate  conveyances.  Another 
reason  is  that  ejectment  deals  with  the  right  of  possession,  which 
may  depend  on  other  things  besides  title,  and  so  the  determination 
of  the  title  in  the  injunction  suit  would  not  necessarily  settle 
the  action  of  ejectment.93  But  where  one  knowing  what  lands 
were  intended  to  be  conveyed  to  a  grantee  by  a  deed  to  him  re- 
ceives a  conveyance  from  such  grantee  containing  the  same 
description  and  claiming  thereunder,  brings  ejectment  to  recover 
lands  not  intended  to  be  conveyed  to  such  grantee,  but  included 
by  mistake  in  the  description,  he  may  be  made  party  to  an  action 
for  the  reformation  of  the  deeds,  and  may  be  restrained  from 
prosecuting  his  ejectment  suit.94     For  a  deed  may  be  reformed, 

91.  Waring  v.  Lewis,  53  Ala.  615;  this  action  she  makes  her  cause  of 
Moore  v.  Lesueur,  33  Ala.  237;  King  complaint,  viz:  the  fraud  or  mistake 
v.  Smith,  15  Ala.  270.  in  the  deed;   and  if  she  shall  satis- 

92.  Wilkinson  v.   Stuart,    74  Ala.  factorily  establish   the   same  it  will 

198.  See  Ward  v.  Corbitt,  72  Ala.  seem  to  defeat  the  plaintiff  herein. 
438;    Pope   v.    Whitehead,    68   N.    C.       Phillips  v.   Gorham,    17   N.   Y.  270 

199.  VanDeusen  v.  Sweet,  51  N.  Y.  378 

93.  Bullard  v.   Bearss,    3    N.    Y.  Lattin   v.   McCarty,   41    N.   Y.    107 
Supp.    683,    per   Kennedy,   J. :      "  In  Pitcher  v.  Hennessey,  48  N.  Y.  422 
•the  ejectment    action    the  defendant  Mandeville    v.    Reynolds,    68    N.    Y. 
therein  and  the  plaintiff  in  this  could  543." 

interpose    by    way    of    an    equitable  94.  Bush  v.  Hicks,  60  N.  Y.  298. 

defense   the    same   matter   which   in 

889 


§  O.^r  Staying  A.otiohs  ajud  Sum  , 

not  only  wh<  re  there  is  a  mistake  in  the  omission  or  insertion  of 
words,  contrary  to  the  intention  of  the  parties,  but  also  whero 
they,  understanding  the  language  used  in  the  description,  believe 
it  to  correspond  with  the  aetual  boundaries  of  the  land  intended 
to  be  conveyed,  but  are  mistaken,  as  the  mistake  is  one  of  fact  and 
not  of  law.95  And  it  is  no  abuse  of  the  discretion  of  the  court  t/> 
grant  an  injunction  against  an  action  of  ejectment,  upon  the  peti- 
tion of  one  who  alleges  that  she  has  a  vested  remainder  in  the 
land  in  dispute,  after  the  life  estate  of  defendant  in  ejectment; 
that  the  latter  has  acknowledged  service  in  the  ••jectraent  suit,  but 
has  concealed  the  pendency  of  the  suit  from  petitioner;  and  that 
petitioner  believes  that  a  fraudulent  conspiracy  exists  between 
the  parties  in  ejectment  to  suffer  plaintiiT-  h>  recover,  and  to  allow 
them  to  buy  the  land  at  a  .-ale  for  certain  taxes  which  have  never 
been  paid,  although  the  tenant  enjoys  a  large  income  from  the 
land,  in  order  to  interpose  a  tax  title  to  defeat  petitioner's  rights.9* 

§  587.  Enjoining  ejectment  of  a  possessor  under  contract  of 
sale. —  Where  the  owner  of  land  orally  agreed  to  convey  it  to  a 
railroad  company,  for  a  price  which  was  paid  to  him,  and  staked 
out  the  land,  and  moved  back  his  fences,  and  the  company  occu- 
pied it  for  twenty  years  and  made  valuable  improvements  thereon, 
it  was  held  that  equity  would  decree  a  specific  performance  of  the 
oral  agreement  and  would  enjoin  such  former  owner  from  prosecut- 
ing ejectment  suits  against  the  company  to  recover  the  land  in 
controversy;  and  also  that  it  was  not  laches  for  the  company  in 
possession  of  the  land  under  the  parol  contract  to  wait  until  he  was 
sued  before  bringing  his  suit  for  specific  performance  and  the 
injunction,  even  though  he  waited  twenty  years.97 

95.  Bush  v.  Hicks.  60  N.  Y.  298;  vey  the  eight  acres  of  land  for  certain 
Johnson  v.  Taber,  10  N.  Y.  319;  De-  specified  consideration,  which  he  re- 
Rieiner  v.  DeCantillon,  4  Johns.  Ch.  ceived,  and  the  railroad  company  en- 
85.  tered  into  the  possession  of  the  land 

96.  Kendy  v.  Beatty,  82  Ga.  669,  under  the  agreement,  and  made  or 
10  S.  E.  267.  caused  to  be  made  lasting  and  vain 

97.  Hall  v.  Peoria  R.  Co.,  143  111.  able  improvements,  a  court  of  equity 
163,  32  N.  E.  598,  per  Craig,  J.:  "If  will  enforce  the  specific  performance 
the  defendant.   Hall,   agreed   to  con-  of  the  contract,  although  the  agree- 

890 


Staying  Actions  and  Suits. 


§588 


§  588.  Ejectment  of  tenant  when  enjoined. — In  an  action  of 
ejectment  against  a  tenant  in  possession,  when  the  defendant's 
landlord  intervenes,  no  equitable  issues  are  disclosed  by  the  land- 
lord's pleadings  where  nothing  more  is  averred  than  an  unexecuted 
design,  by  collusion  between  the  tenants  of  the  intervenor  and 
the  plaintiff,  to  allow  a  judgment  by  default  against  the  defendant 
before  the  landlord  was  informed  of  it,  and  it  is  error  to  enjoin 
the  plaintiff  from  proceeding  in  his  action,  for  an  abandoned  in- 
tention to  commit  fraud  is  fraud  without  damage  which  a  court 
of  equity  will  not  investigate,  and  if  by  such  a  trick  the.  landlord 
were  to  lose  possession  of  his  land  he  would  promptly  be  restored 
to  possession  and  the  judgment  vacated  by  the  court  of  law  which 


merit    was    by    parol,    Langston    v. 
Bates,   84   111.    524;    Western   Union 
Tel.  Co.  v.  Chicago,  P.  R.  Co.,  86  111. 
252;    Irwin  v.  Dyke,    114  111.  306,    1 
N.  E.  913;     •     •     •     It  is  insisted  in 
the    agreement    that    complainant   is 
barred   of   relief    on    the   ground   of 
laches.      As    to    this    question    it   is 
sufficient  to  say  that  laches  cannot  be 
imputed   to  a   party   who  is   in   the 
possession  of  the  property  in  dispute 
under  a  contract  for  a  deed,  as  the 
railroad  company  was  in  this  case. 
There  was  no  necessity  for  bringing 
a  bill  for  relief  until  the  appellant 
created  the  necessity  by  bringing  an 
action   to    recover    possession   of   the 
property."     Defendant   sold    plaintiff 
four   lots,    taking    a    mortgage  and 
notes    for    the    price.      Subsequently, 
plaintiff   conveyed    two   of    the    four 
lots  back  to  defendant,  and   at  the 
same  time  sold  him  a  house  built  on 
the  two  lots  so  reconveyed,  for  a  sum 
greater  than  the  balance  due  on  the 
mortgage,  and  defendant  satisfied  the 
mortgage  and   delivered  up  the  un- 
paid  notes.     The   agreement  of  sale 
was   that  defendant  should   pay   for 
the  house  within  a  reasonable  time, 


and  plaintiff  should  occupy  the  same 
until  paid  for.    Defendant  afterwards 
brought   ejectment  for  the  two   lots 
retained  by  plaintiff,  on  the  ground 
that    the    price    had    not   been    paid 
therefor,  whereupon  plaintiff  filed  a 
bill  to  enjoin  such  suit,  alleging  pay- 
ment of  the  price  by  the  sale  of  his 
house,     and    a    satisfaction    of     the 
mortgage  and  surrender  of  the  notes. 
Defendant  admitted  the  agreement  to 
purchase       plaintiff's       house,       but 
averred  that  such  agreement  had  no 
bearing  on  the  price  due  him  for  the 
two  lots  retained  by  plaintiff.     Held, 
that  an  injunction  was  properly  al- 
lowed;    the    chancellor    being    war- 
ranted in  finding  that  the  price  had 
been     paid.       Fogarty     v.     McArdle 
(Ala.),  11  So.  19.     A.,  being  in  pos- 
session of  land,  and  having  made  im- 
provements, and  being  about  to  bring 
a  suit  for  specific  performance,  was 
forcibly  dispossessed  by  the  lessee  of 
one  to  whom  the  vendor  conveyed  the 
land,   and  was   sued   in  trespass   by 
such    lessee    for    attempting    to    re- 
cover possession.    Held,  that  the  les 
see   and   his   grantor   should   be  en- 
joined pending  A.'s  suit  for  specific 


891 


§  589  Staying  Actions  and  Suits. 

rendered  the  judgment.98  But  where  a  person  went  into  open  and 
notorious  possession  of  land  under  a  contract  of  sale  and  erected 
buildings  on  the  land  and  fully  paid  the  purchase  price  according 
to  the  terms  of  the  contract  and  intervened  as  a  defendant  in  an 
action  in  ejectment  brought  against  his  tenant,  in  which,  however, 
he  was  not  permitted  to  make  his  equitable  defense,  it  was  held 
ho  was  entitled  to  an  injunction  to  restrain  the  further  prosecution 
of  the  action  in  ejectment,  a.s  tin-  pluintitV  therein  WU  DOt  an  inno- 
cent purchaser,  but  took  title  with  full  knowledge  of  the  facts.9* 
And  where  on  a  bill  to  restrain  a  threatened  eviction  of  the  plain 
tiff  by  the  owner  of  the  fee,  it  appeared  that  the  plaintiff  wm 
sub-lessee  under  a  lease  assented  to  by  the  defendant's  predecessor 
in  title  and  binding  on  the  defendant,  and  that  it  would  not  expire 
for  more  than  three  yean  from  the  filing  of  the  bill,  it  was  held 
that  the  plaintiff  should  not  be  confined  to  recovering  damages  on 
the  ground  that  the  injury  of  an  injunction  to  the  owner  would  be 
incommensurate  with  the  benefit  to  the  plaintiff,  and  that  an  in- 
junction should  issue.1 

§  589.  Restraining  action  in  ejectment  for  laches. — An  action 
in  ejectment  may  be  restrained  on  the  ground  that  the  plaintiff 
therein  is  estopped  by  laches  from  maintaining  it,  and  a  complaint 
which  seeks  to  restrain  such  an  action  and  to  quiet  complainant's 
title,   is  good  as  against   a   demurrer   to  the  whole  bill.2     And 

performance.     Hadfield    v.    Bartlett,  2.  Conklin    v.    Wehrman,    38    Fed. 

66  Wis.  635,  29  N.  W.  639.    See,  also,  874.     In  this  case  it  appeared  than 

Smith  v.  Finch,  8  Wis.  251.  an   attachment  was  issued   in   Iowa, 

98.  Reay  v.  Butler,  69  Cal.  572.  in  a  suit  against  W.,  and  levied  on 
11  Pac.  463.  In  such  an  action  of  realty  therein,  the  notice  being  served 
ejectment  the  landlord  would  be  al-  personally  on  W.  in  Wisconsin, 
lowed  also  to  intervene  on  motion.  Judgment  was  entered  by  default 
Button  v.  Warschauer,  21  Cal.  609;  against  W.,  and  the  property  ordered 
Calderwood  v.  Brooks,' 28  Cal.  151;  sold.  In  1862,  the  attachment  plain- 
Dimick  v.  Derringer,  32  Cal.  488;  tiff  brought  an  action  to  set  aside  a 
Valentine  v.  Mahoney,  37  Cal.  389;  conveyance  of  the  land  by  W.  to  F., 
Porter  v.  Garrissino,  51    Cal.  560.  as  made  in  fraud  of  his  right-,  and  no- 

99.  Long  v.  Thayer,  150  U.  S.  520,  tice  was  served  on  defendants  person- 
14  S.  Ct.  189.  37  L.  Ed.  1167.  ally  in  Wisconsin.     A  decree  was  en- 

1.  Lynch  v.  Union  Inst,  for  Saving,  tered,  subjecting  the  land  to  an  execu- 
158  Mass.  394,  33  N.  E.  603.  tion   in   the   attachment   proceedings. 

892 


Staying  Actions  and  Suits.  §  589 

where   a  land  owner  has  knowledge  of  and   acquiesces   in  the 
making  of  improvements  by  one  in  possession  of  the  land,  he 
may    be    enjoined    from    maintaining    an    action    of    ejectment 
in    order    to   let    in    the    defense    of    acquiescence.3      So    where 
after  twenty  years'  acquiescence  in  the  maintenance  of  a  railroad 
across  defendant's  land,  negotiations  having  been  pending  concern- 
ing the  compensation  which  should  be  paid,  the  owner  will  be 
enjoined  from  maintaining  ejectment  pending  condemnation  or 
payment  of  the  compensation  to  be  determined  and  awarded  in  the 
injunction  suit.4     But  where  a  trustee  of  real  estate  sold  it  at 
public  auction,  and  bought  in  portions  of  it  through  a  third  person, 
and  the  transaction  was  known  to  all  of  the  cestui  que  trustent, 
and  not  objected  to,  and  the  trustee  fully  accounted  to  them  for 
the  proceeds,  equity  refused  to  afford  them  injunctive  relief  after 
a  lapse  of  twenty  years,  as  such  purchase  by  the  trustee  was  not 
absolutely  void,  but  only  voidable.5    But  a  person  in  possession  of 
land,  under  a  contract  for  the  purchase  of  it,  is  not  guilty  of  lachee 
in  not  enforcing  the  completion  of  his  title,  so  long  as  he  is  not 
disturbed  in  his  possession.6 

Held,  that  while  the  personal  service       Hudson,  etc.,  R.  Co.  v.  Booraem,  28 
may  not  have  been  sufficient  to  au-       N.  J.  Eq.  450. 

thorize  a  personal  judgment  against  5.  Hammond   v.    Hopkins,    143   U. 

F,  it  notified   him  that  proceedings       S.  224,  12  S.  Ct.  418,  36  L.  Ed.  134; 
were  being  taken  to  subject  the  land       Marsh   v.    Whitmore,    21    Wall.    178, 
to  sale  as  the  property  of  W.,   and       22  L.  Ed.  482;   Landsdale  v.  Smith, 
that  he,  having  remained  inactive  for       106  U.  S.  391,   1   S.  Ct.  350,  27   L. 
twentv-five  years,  and  failed  to  per-       Ed.  219;  Norris  v.  Haggin,  136  U.  S. 
form  any  of  the  duties  of  an  owner,       386    10  S.  Ct.  942.   34  L.  Ed.  424; 
such  as  listing  the  property,  and  pay-       Mackall  v.   Casilear,   137    U.   S.  556. 
ing  taxes,  was  estopped  to  maintain       11   S.  Ct.   178,  34  L.  Ed.  776;  Han- 
ejectment  for  the  land.  ner  v.  Moulton,  138  U.  S.  486,  11  S. 
3    South  &  N.  A.  R.   Co.  v.  Ala-       Ct.   408,   34    L.    Ed.    1032;    Root  v. 
bama  Great  S.  R.  Co.    (Ala.   1906),       Woolworth,    150   U.   S.  401,   414,   14 
41  g0    307  S.  Ct.   136,  37  L.  Ed.   1123.     As  to 
4.  Paterson,  N.  &  N.  Y.  R.  Co.  v.       the  necessary  allegations  to  execuse 
Kamlah    42  N   J    Eq.  93,  6  Atl.  444.       apparent     laches,      see     Badger      v. 
And  see' Trenton  Water  Co.  v.  Cham-       Badger,    2   Wall.   87,   95,    17    L.   Ed. 
bers     9    N     J.    Eq.    471;    Carson    v.       836;  Michoud  v.  Girod,  4  How.  503, 
Coleman,  11  N.  J.  Eq.  106;   Pickert       11  L.  Ed.   1076. 

▼    Ridgefield    etc.,   R.  Co.,  25  N.  J.  6.  Hall  v.  Peoria  &  E.  Ry.  Co.,  143 

Eq.  316;   New  York,  etc.,  R.  Co.  v.       111.  163,  32  N.  E.  598. 
Stanley,    34    N.    J.    Eq.    55;    North 

893 


§§  500,  591,  592        Stating  Actions  and  Suits. 

§  590.  When  ejectment  not  enjoined  for  mistake. — Equity 
cannot  enjoin  an  ejectment  suit  by  one  on  whose  land  another  has 
innocently  encroached,  owing  to  the  mistake  of  a  surveyor  em- 
ployed by  defendant  in  the  ejectment  suit  to  ascertain  the  line.7 
And  to  warrant  the  interference  of  equity  in  favor  of  a  person  who 
has  expended  his  money  on  another's  land  by  building  thereon, 
he  must  have  supposed  that  the  land  was  his,  and  the  other  must 
have  known  that  it  was  not,  and  yet  stood  by  and  allowed  him  to 
build  without  objection.     Qui  tacet,  videtur  consentire? 

§  591.  When  action  of  trespass  will  not  be  enjoined. — An 
injunction  will  not  issue  to  restrain  the  holder  of  the  legal  title  to 
land  from  prosecuting  an  action  of  trespass  against  one  in  posses- 
sion, it  not  having  been  established  that  the  latter  has  even  an 
equitable  right.9  And  an  injunction  will  not  issue  to  restrain  the 
legal  owner  of  land  from  proceeding  at  law  to  recover  possession, 
when  an  apparently  equitable  title  was  passed  in  fraud  of  cred- 
itors, plaintiff  claiming  under  it  having  knowledge  of,  and  partici- 
pating in  the  fraud.10 

f  592.  Action  for  forcible  entry ;  rule  as  to  enjoining. — As 

7.  Kirchner  v.  Miller,  39  N.  J.  Eq.  &  Refining  Co.,  106  U.  S.  447,  1  S. 
355.  Ct.  389,  27  L.  Ed.  226 ;  Brant  v.  Vir- 

8.  Bright  v.  Boyd,  1  Story,  478,  ginia  Coal  Co.,  93  U.  S.  326,  23  L. 
493;  Ramsden  v.  Dyson,  L.  R.  1  H.  Ed.  927;  Henshaw  v.  Bissell,  18  Wall, 
of  L.  129,  141;  McKelway  v.  Armour,  255,  21  L.  Ed.  835. 

10  N.  J.  Eq.  115.    In  such  a  case  the  9.  Cox.   v.   Gruver,   40   N.   J.   Eq. 

conduct  of  the  owner,  who  stands  by  473,  3  Atl.  172. 

and  permits  another  to  make  large  10.  Powers  v.  Canda.  40  N.  J.  Eq. 
expenditures  on  his  land,  is  either  602,  5  Atl.  143,  rev'g  38  N.  J.  Eq. 
actual  fraud  or  such  gross  negli-  412,  per  Scudder,  J.:  "These  con- 
gence  as  amounts  to  constructive  veyances,  under  which  the  corn- 
fraud.  But  a  party  cannot  invoke  plainant  claims  title,  are  either  vol- 
the  doctrine  of  estoppel  against  the  untary  and  are  void  with  respect  to 
owner  of  land,  by  reason  of  improve-  the  debt  of  this  defendant  which  ex- 
ments  which  he  puts  on  his  land,  if  isted  at  the  date  of  these  transfers, 
he  was  aware  at  the  time  that  it  be-  by  force  of  the  statute  relating  to 
longed  to  him,  and  that  he  himself  frauds  and  perjuries;  or  if  any  con- 
had  no  title  to  it.    Steel  v.  Smelting  sideration  were  given  for  either  con- 

894 


Staying  Actions  and  Suits.  §  592 

proceedings  for  forcible  entry  and  detainer  are  quasi  criminal" 
and  courts  of  equity  will  not  restrain  criminal  proceedings,12  unless 
the  complainant  therein  was  already  seeking  to  substantiate  the 
same  right  in  an  action  in  equity  ;13  it  has  been  held  that  a  plaintiff 
in  a  suit  to  quiet  title  cannot  enjoin  the  defendant  therein  from 
bringing  an  action  at  law  for  forcible  entry  and  detainer,"  since 
the  latter  action  does  not  determine  the  title  to  the  premises  in 
dispute    in   the  former   action,   nor  the   right   to   the  possession 
thereof.15     And  while  a  court  of  equity  may  enjoin  further  pro- 
ceedings in  an  action  of  forcible  entry  and  detainer  it  will  only 
exercise  this  power  where  certain  irreparable  injury  will  result 
unless  it  is  exercised.16     And  it  is  decided  that  a  court  of  equity 
will  not  interfere  by  injunction  with  such  proceedings  where  there 
is  no  allegation  of  fraud,  mistake,  accident  or  surprise.17     And 
an  injunction,  at  the  tenant's  instance,  to  restrain  an  action  for 
forcible  detainer,  brought  by  lessor  on  the  ground  of  fraudulent 
representations  by  him,  at  the  time  of  letting,  is  properly  dissolved 
on  the  lessor's   answer  positively   denying  the  fraud.18     Again, 
when  the  purchaser  of  lands  enters  into  possession,  under  a  convey- 
ance in  which  they  are  misdescribed,  and  is  afterwards  sued  in 
ejectment  by  his  vendor,  or  the  statutory  action  in  the  nature  of 
ejectment,  he  may  have  the  conveyance  reformed  and  the  action 
at  law  stayed  pending  the  suit,  but  if  the  vendor  brings  an  action 

veyance,  the  purpose  of  all  and  their  14.  Northern  Pac.  R.  Co.  v.  Can- 
effect     were     frauds     on     creditors,  non,  49  Fed.  517. 
known  to  the  complainant  at  and  be-  jg    Parks    v.    Barkley,    1     Mont, 
fore  the  time  of  the  transfer  to  him  514.  £oardman  v.  Thompson,  3  Mont, 
—these     will     avoid     his     deeds     as  3g^ 

against    this    defendant.      Haston    v.  lg    Crawford   v    pajnC)    19   Iowa, 

Castner,  31  N.  J.  Eq.  G97."  1?2 

11.  2  Daniell,  Ch.  PI   A  Pr    1620;  '                                  2Q              ^ 

Sheehv  v.  Flaherty,  8  Mont.  36o,  20  *••  **                      '.,,„„ 

Pac    687  18    Worthington  v.  Hatch,  13  So, 

S12    Re   Sawyer.   124  U.  S.  200,  8  518.     An   injunction    will   lie   to   re 

S    Ct    482    31  L    Ed    402.  strain  summary  proceedings  for  forc- 

13*  Story,  Eq.'jur.,  §  893;  Mayor,  ible   entry   and   detainer,   when   void 

etc     v    Pilkington,  2  Atk.  302;    At-  for    want    of    jurisdiction,    when    no 

torney   General    v.    Cleaver,    18   Ves.  final  order  has  been  entered,  notwith- 

220;    Montague   v.   Dudman,   2    Ves.  standing   Code   Civ    Proc     N    Y     § 

Sen.  390,  398.  2265,    until    after    the    final    order. 

895 


§593 


Staying  Actions  and  Suits. 


of  unlawful  detainer,  in  which  title  cannot  be  inquired  into,  the 
purchaser  cannot  enjoin  the  action  while  he  seeks  a  reformation 
of  the  conveyance.19 

§  593.  Enjoining  foreclosure  of  mortgage. — Where  in  an  action 
to  cancel  a  mortgage,  and  enjoin  a  foreclosure  of  it,  the  bill  alleged 
that,  if  the  transaction  was  governed  by  the  laws  of  Alabama,  it 
was  void,  because  defendant,  being  a  foreign  corporation,  did  not 
have,  a  known  place  of  business  in  the  State,  as  required  by  the 
constitution,  and  if  the  transaction  was  governed  by  the  laws  of 
New  York,  where  the  papers  were  executed,  it  was  void,  for  usury  ; 
and  that  complainant  was  not  indebted  to  defendant  in  any  sum, 
but  complainant  offered,  if  he  was  mistaken  in  this  to  pay  defend- 
ant whatever  sum  the  court  adjudged  to  be  due,  it  was  held,  that 
the  offer  to  pay,  though  not  unequivocal,  was  sufficient  to  bring 
the  case  under  the  rule  that  he  who  asks  equity  must  do  equity; 
and  that  as  the  bill  showed  that  the  foreclosure  would  cause  irre- 
parable injury  to  complainant,  it  ought  to  be  enjoined.20    As  proof 


Schneider    v.     Leitzman.     11     N.    Y. 
Supp.  434. 

19.  Murphree  v.  Bishop,  79  Ala. 
404.  per  Stone,  C.  J. :  "  It  is  con- 
tended that  the  ruling  in  Robbins  v. 
Battle-House  Co.,  74  Ala.  499,  main- 
tains the  injunction  granted  in  this 
case.  In  that  case  Robbins  claimed 
under  a  mere  tenancy.  As  the  con- 
tract of  lease  was  drawn,  he  was  a 
tenant  at  sufferance  of  a  large  part 
of  the  tenement.  That  tenancy  was 
subject  to  be  put  an  end  to  at  any 
time  by  the  landlord  without  any 
leason  therefor.  If  the  lease  was  re- 
formed as  claimed  in  the  bill,  then 
the  tenant  was  in  for  a  term  not  yet 
expired.  The  question  of  unlawful 
detainer  was  still  pending  on  appeal 
in  the  Circuit  Court,  and  it  was  nec- 
essary to  the  defense  of  that  suit 
that  the  lease  should  be  reformed 
before  the  appeal  cause  was  tried.  On 


that  ground  alone  we  held  the  in- 
junction was  improperly  dissolved." 
And  see  Vandeve  v.  Wilson,  73  Ala. 
387. 

20.  New  England  Mortgage  Secur- 
ity Co.  v.  Powell,  97  Ala.  483,  12  So. 
55,  per  Head,  J.:  "It  is  settled  in 
this  State  and  it  is  believed  to  be  a 
principle  recognized  generally  in 
equity  jurisprudence,  that  where  a 
party  applies  to  a  court  of  equity  to 
cancel  a  contract  or  agreement  en- 
tered into  by  him.  on  the  ground  of 
illegality  in  violating  the  provisions 
of  some  statute  prohibiting  the  mak- 
ing of  such  contract  or  agreement, 
the  court  will  require  him,  as  a  con- 
dition to  granting  the  relief,  to  do 
equity,  by  restoring  or  repaying 
whatever  he  may  have  received  under 
the  contract  or  agreement  sought  to 
be  canceled;   and  he  must  expressly 


896 


Staying  Actions  and  Suits. 


§594 


of  payment  of  a  mortgage,  as  alleged  in  a  bill  to  cancel  the  same  is 
on  complainants,  if  it  is  denied  in  a  sworn  answer  made  on  knowl- 
edge, the  allegation  of  payment  will  not  sustain  an  injunction  in 
limine  restraining  legal  proceedings  by  a  purchaser  under  the 
mortgage.  In  such  a  case,  where  the  parties  defendant  are  the 
transferee  of  the  mortgage  and  his  wife,  who  purchased  under  the 
mortgage  sale,  and  the  wife  is  made  a  party  merely  on  the  general 
allegation  that  she  claims  some  interest  in  the  property,  though  the 
wife's  answer  is  unverified,  a  sworn  answer  of  the  husband,  deny- 
ing the  allegations  of  the  bill,  will  justify  a  refusal  of  the  injunc- 
tion.21 

§  594.  Same  subject;  set-off  against  mortgagee. — The  fore- 
closure of  a  mortgage  by  bill  in  equity,  will  not  be  enjoined  at 
the  mortgagor's  instance  merely  to  enable  him  to  set  off  claims 
against  the  mortgagee,  of  a  purely  legal  character,  there  being  no 
allegation  of  insolvency,  or  of  facts  showing  the  inadequacy  of 
the  legal  remedy.22  If  the  mortgagee  is  seeking  a  foreclosure  in 
equity,  the  mortgagor  may  set  off  any  debt  or  demand  he  may 


offer  in  his  bill  so  to  do.  Mortgage 
Co.  v.  Sewell,  92  Ala.  163,  9  So.  143, 
and  cases  tliere  cited.  See,  also,  Pom. 
Eq.  Jur.,  §  391;  2  Story,  Eq.  Jur.,  §§ 
693,  694.  We  need  not  decide  on 
this  appeal  whether,  under  the 
averments  of  the  bill,  the  transac- 
tions assailed  were  Alabama  trans- 
actions, or  governed  by  the  laws  of 
New  York.  If  either  be  true,  and 
there  was  such  violation  of  the  )ocal 
law  in  respect  of  them  as  is  charged 
in  the  bill,  the  note  and  mortgage 
are  void,  and  complainant  is  entitled 
to  have  them  delivered  up  and  can- 
celed, upon  repaying  to  the  defend- 
ant the  sums  of  money  actually  re- 
ceived by  him,  or  to  his  use  and  bene- 
fit, with  lawful  interest  thereon."  See, 
also,  Whitley  v.  Duniham  Lumber 
Co.,  89  Ala.  493,  7  So.  810.  where  on 
a  bill  to  redeem  the  foreclosure  was 
enjoined. 


As  to  enjoining  foreclosure  of  mort- 
gages, see,  also,  §  1258  herein. 

21.  Hartley  v.  Matthews,  96  Ala. 
224,  11  So.  452,  per  Thornton,  J.: 
"The  facts  alleged  in  the  bill,  if  es- 
tablished by  proof,  are  sufficient  to 
authorize  relief  as  against  the  mort- 
gage. Tipton  v.  Wortham,  93  Ala. 
321,  9  So.  596;  Whitley  v.  Dumham 
Lumber  Co.,  89  Ala.  493,  7  So.  810. 
But  as  averred,  they  defeat  any  right 
in  the  complainants  to  relief  by  an 
injunction  in  limine."  As  to  the  ef- 
fect of  the  denials  in  the  answer,  see 
Jackson  v.  Jackson  (Ala.),  10  So.  31, 
where  Stone,  C.  J.,  lays  down  the 
general   rule. 

22.  Knight  v.  Drane,  77  Ala.  371, 
per  Clapton,  J. :  "  We  coitcur  with 
the  chancellor  that  the  bill  is  with- 
out equity.  The  right  of  the  mort- 
gagor to  set  off  the  mortgage  debt  by 
a  debt  or  demand  due  him  by  the 


897 


57 


§§  595,  596  Staying  Actions  and  Suits. 

hold  against  the  mortgagee  which  would  be  the  proper  subject  of 
set-off  if  the  mortgagee  was  suing  at  law  for  the  recovery  of  the 
mortgage  debt  f  but  if  it  becomes  necessary  for  the  mortgagee  to 
resort  to  injunctive  relief,  upon  the  ground  that  he  has  a  proper 
set-off  against  the  mortgagee  or  mortgage  debt,  he  must  have  some 
other  equity  than  the  mere  existence  of  a  demand  which  is  the 
proper  subject  of  set-off."4 

§  595.  Enjoining  action  at  law  by  mortgagee  after  mortgage 
debt  is  paid. — When  the  jurisdiction  of  a  court  of  equity  has 
attached  under  a  bill  filed  by  a  mortgagor,  alleging  payment  of 
the  mortgage  debt,  and  praying  a  cancellation  of  the  mortgage 
or  a  redemption  on  payment  of  any  balance  found  due  on  state- 
ment of  the  account;  and  the  mortgagee  afterwards  brings  an 
action  at  law  on  the  notes  secured  by  the  mortgage,  the  action 
may  be  enjoined.25 

§  59G.  Action  at  law  for  breach  of  covenants  in  deed. — Equity 
will  not  restrain  the  prosecution  of  an  action  at  law  for  the  breach 
of  covenants  of  seisin  and  quiet  enjoyment,  on  the  ground  that 
the  covenantee  at  the  time  he  took  the  deed,  knew  that  the  grantors 
had  no  title,  and  concealed  such  knowledge  from  them ;  and  the 
fact  that  one  of  the  grantors  has  become  insolvent  since  the  execu- 
tion of  the  deed,  and  that  complainant  must  pay  the  entire  damages 

mortgage  depends,  in  some  cases,  on  of  a  set-off,  he  must  allege  and  show 

which  party  resorts  to  equity.    When  some  other  ground  of  equitable  inter- 

the  mortgagee    brings    in    a    bill  in  position  than  the  mere  existence  of  a 

equity    for    the    foreclosure    of    the  legal    demand    which    is    the    proper 

mortgage    the  mortgagor  may  set  up  subject  of  set-off  under  the  statute. 

Tny  defense    other   than  the  statute  Gafford  v.  Proskauer,  59  Ala.  264." 

of  limitations,  which  would  avail  in  23.  Irving  v.  DeKay,  10  Paige  (N. 

an  action   at  law  on   the  debt,  and  Y.),   319;    Chapman   v.   Robertson,  6 

hence    may,    in    reduction    or    extin-  Paige   (N.  Y.),  027. 

guishment  of  the  mortgage  debt,  set  24.    Cave    v.    Webb,   22    Ala.    583; 

off  any  debt  or  demand  that  would  Tuscumbia,  etc.,  R.  Co.  v.  Rhodes,  8 

be  available  at  law.     It  is,  however,  Ala.  200. 

well    settled    that   when    it   becomes  25.  Whitley    v.    Dunham    Lumber 

necessary   for   the   mortgagor   to   re-  Co.,  89  Ala.  493,  7  So.  810,  per  Mc- 

soft  to  equity  to  obtain  the  benefit  Clellan,  J.:      "The    chancery    court, 

898 


Staying  Actions  and  Suits. 


§597 


for  the  breach,  is  immaterial.26  In  such  an  action  the  deed 
governs,  and  the  grantor,  in  order  to  defeat  the  operation  of  the 
covenant  cannot,  in  the  absence  of  fraud,  establish  by  parol  the 
grantee's  knowledge  of  an  incumbrance  upon  the  land  conveyed, 
or  a  defect  in,  or  utter  want  of  title,  or  by  oral  proof,  engraft 
upon  the  deed  exceptions  and  reservations  which  it  does  not  ex- 
press.27 

§  597.  Priority  of  suits. — Where  complainant,  who  is  in  pos- 
session, files  a  bill  to  quiet  title,  and  afterwards  defendant  files  a 
bill  for  partition  of  the  same  land,  without  making  complainant  a 
party,  the  latter  may  have  the  partition  suit  enjoined  until  his  suit 
is  determined.28  But  plaintiff  in  a  suit  to  quiet  title  cannot  enjoin 
defendant  from  bringing  an  action  at  law  against  him  for  forcible 
entry  and  detainer  of  the  premises  in  question.29     Under  a  Code 


having  thus  rightfully  acquired  juris- 
diction of  the  controversy,  and  re- 
strained the  sale  under  the  mortgage, 
had  the  further  right,  as  a  matter  of 
course,  to  protect  and  effectuate  its 
jurisdiction  by  enjoining  the  suit  at 
law  instituted  after  bill  hied  for  the 
purpose  of  having  one  of  tlie  chief 
questions  involved  in  the  chancery 
case  determined  in  the  law  court. 
Northeastern  R.  Co.  v.  Barrett,  65 
Ga.  G01;  Hadfield  v.  Bartlett,  60 
Wis.  635,  29  N.  W.  639."  And  see, 
as  to  the  equity  of  the  original  bill, 
Fields  v.  Helms,  70  Ala.  460;  Gil- 
mer v.  Wallace,  79  Ala.  464. 

26.  Sparrow  v.  Smith,  63  Mich. 
209,  29  N.  W.  691,  per  Morse,  J.: 
"There  is  no  allegation  in  the  bill 
that  there  was  any  collusion  between 
the  plaintiffs  in  the  ejectment  suit 
and  defendant  Smith,  the  covenantee. 
If  there  had  been,  and  the  judgment 
in  that  case  was  shown  to  have  been 
brought  about  by  such  collusion,  a 
different  case  might  have  been  pre- 
sented to  us.    As  it  is,  the  mere  con- 


cealment by  Smith  from  the  com- 
plainant and  Bush,  the  joint  cove- 
nantors, of  his  knowledge  of  the  de- 
fect in  their  title,  as  it  could  not 
harm  them  or  either  of  them,  save  by 
the  not  contemplated  insolvency  of 
Bush,  nor  benefit  Smith,  who  could 
make  notliing  out  of  the  transaction, 
cannot  be  considered   as  fraudulent." 

27.  Connecticut. — Hubbard  v.  Nor- 
ton, 10  Conn.  423,  431. 

Iowa.— Barlow  v.  McKinley,  24 
Iowa,  70;  Van  Wagner  v.  Van  Nos- 
trand,  19  Iowa,  422. 

Massachusetts. — Harlow  v.  Thomas, 
15  Pick.  66. 

Michigan. — Sparrow  v.  Smith,  63 
Mich.  209,  29  N.  W.  691. 

Neic  York. — Suydam  v.  Jones,  10 
Wend.   180,  186. 

28.  McCullough  v.  Absecom  Land 
Imp.  Co.  (N.  J.  Eq.),  10  Atl.  606. 
And  see  Hammers  v.  Hanrick,  69 
Tex.  412,  7  S.  W.  345. 

29.  Northern  Pac.  R.  Co.  v.  Can- 
non, 49  Fed.  517. 


899 


^598 


Staying  Actions  and  Suits. 


provision  that  defendant  may  set  up  all  the  defenses,  legal  or 
equita'ble,  which  he  may  have  to  an  action,  he  cannot  maintain  a 
separate  action,  based  on  an  equitable  defense,  to  enjoin  the  first 
action.30  In  an  action  for  judgment  on  a  note  and  for  foreclosure 
of  a  mortgage,  a  petition  that  the  action  be  enjoined  so  far  as  the 
foreclosure  is  concerned,  until  the  final  determination  of  a  causo 
between  the  same  parties,  for  the  cancellation  of  the  mortgage 
then  pending  on  appeal  to  the  Supreme  Court,  is  addressed  to 
the  equity  side  of  the  court,  and  must  affirmatively  state  facts 
showing  a  defense,  and  that  such  defense  is  properly  pleaded  and 
presented  in  the  action  which  is  on  appeal  and  that  that  action 
is  prosecuted   in  good  faith  and  with  a  reasonable  prospect  of 


success. 


::i 


§  598.  Same  subject. — "Where  the  decision  in  one  action  will 
determine  the  right  set  up  in  another  action  or  several  other 
actions,  and  the  judgment  on  one  trial  will  dispose  of  the  contro- 
versy in  all  the  other  actions,  the  latter  may  be  stayed.  Thus 
where  different  actions  have  been  brought  by  creditors  in  behalf 
of  themselves  and  other  creditors,  against  an  assignee  for  the 
benefit  of  creditors  for  an  accounting  and  closing  of  the  trust,  the 


30.   Richardson   v.   Davidson,  5  N. 
Y.    Snpp.   617.      In   Savage   v.   Allen, 
54   N.   Y.   458,    Reynolds,    C,    said: 
"  Tlie  proposition  that  a  separate  ac- 
tion  may,  under  our  present  system, 
be  maintained  to  restrain,  by  injunc- 
tion, the  proceedings   in   another   suit 
in    the   same     or     another     court,   be- 
tween   the    same    parties,    where    the 
relief  sought  in  the  later  suit  may  be 
maintained    by    a    proper    defense    to 
the   former  one,   has  long  since  been 
exploded,  or  if  not,  should  be  without 
delay.    Sheehan  v.  Hamilton,  2  Keyes, 
304;  Win  field  v.  Bacon,  24  Barb.  154 
Schell  v.  Erie  R.  Co.,  51   Barb.  308 
Dobson  v.  Pearce,  12  N.  Y.  158",  165 
Cummings  v.  Morris,  25  N.   Y.  625 
Pitcher  v.  Hennessey,  48  N.  Y.  415, 


422.  It  is  said  that  a  party  having 
a  good  equitable  defense  to  an  action 
of  ejectment,  is  not  absolutely  bound 
to  interpose  it,  but  is  at  liberty  to 
some  form  of  remedy  by  injunction 
in  another  suit.  If  this  he  admitted 
for  the  sake  of  argument,  it  must  be 
remembered  that  the  remedy  by  in- 
junction rests  very  largely  in  the  dis- 
cretion of  the  court,  and  that  judi- 
cial discretion  would  not,  probably, 
be  exercised  where  a  party  had,  in 
some  other  form,  abundant  means  for 
the  protection  of  his  rights  which, 
without  excuse,  he  neglected  to  as- 
sert." See,  also,  VonProchazka  v.  Von 
Prochazka,  3  N.  Y.  Supp.  301. 

31.  Horman  v.  Hartmetz,  131  Ind. 
558,  31  N.  E.  81. 


900 


Staying  Actions  and  Suits.  §  599 

court  has  the  power  to  make  an  order  to  compel  all  the  creditors 
to  come  in  and  prove  their  claims  in  the  suit  first  brought,  and 
to  stay  all  proceedings  in  the  other  actions.32  And  if  two  different 
suits  are  brought  in  behalf  of  an  infant  by  two  different  persons, 
each  claiming  to  be  his  next  friend,  a  court  of  equity  may  deter- 
mine which  suit  shall  proceed,  and  enjoin  the  other.33  But  a  stay 
of  proceedings  in  one  action  until  the  determination  of  another 
action  pending  in  another  court  should  not  be  granted,  when  the 
party  against  whom  the  stay  is  sought  is  neither  a  party  nor  a 
privy  to  such  other  action,  and  will  not  be  bound  by  any  adjudi- 
cation therein.34  Where  in  an  action  by  certain  creditors  of  a  cor- 
poration on  behalf  of  themselves  and  all  other  creditors  to  enforce 
the  statutory  liability  of  the  stockholders,  an  injunction  was 
granted,  restraining  all  creditors,  whether  parties  to  the  action  or 
not,  from  commencing  or  further  prosecuting  any  action  against 
the  stockholders  to  enforce  such  liability,  it  was  held,  that  for  the 
purposes  of  a  motion  to  postpone  separate  actions  pending  by  other 
creditors,  it  was  not  necessary  to  serve  the  injunction  order  per- 
sonally on  plaintiffs  therein,  but  it  was  sufficient  to  show  that  they 
or  their  attorneys  had  knowledge  of  its  existence.35 

§  599.  Where  jurisdiction  is  concurrent. — In  accordance  with 
the  general  rule  that  where  the  jurisdiction  of  two  courts  is  con- 
current, the  jurisdiction  of  the  court  which  first  attaches  should 

32.  Travis  v.  Myers,  67  N.  Y.  542,  48  N.  Y.  62;  Erie  R.  Co.  v.  Ramsey, 

per   Curiam:      "The   Supreme   Court  45  Id.  637;    In  re  Hemiup,  2  Paige, 

had    power   to   make   the  order   com-  819." 

plained   of,   and   to   compel   creditors  3,3.  Morrison  v.  Bell,  5  Ir.  Eq.   (N. 

and  claimants,  of  whom  the  appellant  C.)   354. 

is  one,   to   come   in   and    prove   their  34.    Dolbeer   v.    Stout,    139    N.   Y. 

claims   in   the   suit  first   brought   by  486,  34  N.  E.  1102.    See,  also,  People 

one  creditor  in  behalf  of  himself  and  v.  Wasson,  64  N.  Y.  167;  Third  Ave. 

all   others  for   an   accounting  by  the  R.  Co.  v.  Mayor,  etc.,  54  N.  Y.  159; 

assignee,  and  the  closing  of  the  trust,  DeGroot   v.    Jay,    30    Barb.    (N.    Y.) 

and  to  stay  proceedings  in  other  ac-  483. 

tions.     Such  order  was  authorized  by  35.  Watson  v.  Coe,  5  N.  Y.  Supp. 

statute,  and  in  conformity  to  the  es-  614;   Armitage  v.  Hoyle,  2  How.  Pr. 

tablished    practice    of   the    court.      2  (N.  S.)  438;  Hull  v.  Thomas,  3  Edw. 

Rev.  Stat.  183,  §  106;   Innes  v.  Lan-  Ch.   (N.  Y.)  236. 
sing,  7  Paige,  583;   Kerr  v.  Blodgett, 

901 


§  GOO 


Staying  Actions  am>  Suits. 


prevail,36  a  court  of  equity  will  not  grant  a  preliminary  injunction 
for  the  mere  purpose  of  obtaining  exclusive  jurisdiction  "t  a. 
controversy,37  and  will  not  take  jurisdiction  where  tbi*  bill  discloses 
a  case  of  concurrent  jurisdiction,  as  to  which  the  jurisdiction  of 
the  law  court  has  already  attached.38 

§  600.  Federal  injunction  against  proceedings  in  State  courts. 
— It  is  an  established  doctrine  that  a  court  of  equity  will  nol  en- 
join proceedings  pending  in  another  and  independent  forum,  where 
the  latter  has  jurisdiction  and  can  afford  to  the  parties  appropriate 
relief;89  and  this  rule  is  not  to  be  evaded  by  directing  the  injunc- 
tion to  the  litigating  parties  only,  and  not  to  the  court.40  And  the 
rule  just  laid  down  applies  as  between  Federal  and  State  courts, 
as  those  courts  act  separately  and  independently  of  each  other.41 


36.  Smith  v.  Mclver,  9  Wheat. 
(U.  S.)  532,  6  L.  Ed.  152;  Bumpass 
v.  Reams,  1  Sneed  (Tenn.),  597.  See 
§§   75-89,  ante. 

37.  Waterlow  v.  Bacon,  L.  R.  2  Eq. 
514;  Mitchell  v.  Oakley,  7  Paige  (N. 
V.),  68. 

38.  McLin  v.  Robinson,  1  Heisk. 
(Tenn.)  678.  See,  also,  Wilson  v. 
Lambert,  168  U.  S.  611,  18  S.  Ct.  217, 
42  L.  Ed.  599;  Crane  v.  Bunnell,  10 
Paige  (N.  Y.),  333;  Clarke  v.  Man- 
tling, 7  Beav.  162;  Mason  v.  Pigott, 
11  111.  85;  Ross  v.  Buchanan,  13  111. 
55. 

39.  Wilson  v.  Lambert,  168  U.  S. 
611,  18  S.  Ct.  217,  42  L.  Ed.  599; 
Diggs  v.  Wolcott,  4  Cranch  (U.  S.), 
179,  2  L.  Ed.  587;  Peck  v.  Jenness, 
7  How.  (U.  S.)  612,  12  L.  Ed.  841. 
See  §§  88,  89,  ante. 

40.  Peck  v.  Jenness,  7  How.  (U. 
S.)  612,  624,  625,  12  L.  Ed.  841; 
Whitney  v.  Wilder,  54  Fed.  554. 

41.  Riggs  v.  Johnson  Co.,  6  Wall. 
(U.  S.)  166,  18  L.  Ed.  768,  per 
Curiam:  "Circuit  courts  and  State 
courts  act   separately,   and   independ- 


ently of  each  other;  and,  in  their  re- 
spective spheres  of  action  tlie  process 
issued  by  the  one  is  as  far  beyond  the 
reach  of  the  other  as  if  the  line  of 
division  between  them  was  traced  by 
landmarks  and  monuments  visible  to 
the  eye."  And  see,  also,  United  States 
v.  Council  of  Keokuk,  6  Wall.  514, 
18  L.  Ed.  933;  Duncan  v.  Darst,  1 
How.  301,  11  L.  Ed.  139;  McKim  v. 
Voorhies,  7  Cranch,  279,  3  L.  Ed.  342; 
Watson  v.  Jones,  13  Wall.  719,  20  L. 
Ed.  666,  672;  City  Bank  v.  Skelton, 
2  Blatchf.  14,  28;  Memphis  City  v. 
Dean,  8  Wall.  64,  19  L.  Ed.  326;  Mal- 
lett  v.  Dexter,  1  Curt.  178;  Parsons 
v.  Lyman,  5  Blatchf.  170;  Peale  v. 
Phipps,  14  How.  368,  14  L.  Ed.  459; 
Bell  v.  Trust  Co.,  1  Biss.  260,  and 
cases  page  274;  Union  Trust  Co.  v. 
Rockford,  etc.,  R.  Co.,  6  Biss.  197. 

It  is  also  a  doctrine  too  fa- 
miliar for  extended  comment 
that  property  in  the  possession  of  a 
court  acting  under  one  jurisdiction 
cannot  be  wrested  from  it  by  an  offi- 
cer acting  under  another  jurisdiction. 
Taylor  v.  Carryl,  20  How.  683,  15  L. 


002 


Staying  Actions  and  Suits. 


§600 


This  rule  that  there  should  be  no  unnecessary  interference  between 
the  State  and  Federal  courts  when  matters  that  were  within  the 
jurisdiction  of  both  had  been  subjected  to  the  control  of  one  of 
them  was  early  established  for  the  purpose  of  preserving  har- 
monious relations  between  such  courts.42  Federal  courts  are  pro- 
hibited from  granting  injunctions  to  stay  proceedings  in  any  court 
of  a  State,  except  as  authorized  so  to  do  in  bankruptcy  proceed- 
ings ;43  but  are  not  prohibited  from  enjoining  the  prosecution  in 
a  State  court  of  a  multiplicity  of  threatened  suits  which  have  not 
been  actually  begun.44  And  it  has  been  held  that  a  Federal  court 
has  no  power  to  enjoin  a  receiver  in  possession  of  a  railroad,  under 
appointment  of  a  State  court,  from  issuing  receiver's  certificates, 
or  to  restrain  the  parties  in  the  State  court  from  carrying  out  an 
agreement  sanctioned  by  that  court.45  And  a  Federal  court  cannot 
grant  an  injunction  to  maintain  the  status  quo  pending  an  appeal 
in  condemnation  proceedings,  where  a  State  statute,  whose  con- 


Ed.  1028;  Freeman  v.  Howe,  24  How. 
450,  16  L.  Ed.  749;  Buck  v.  Colbath, 
3  Wall.  334,  18  L.  Ed.  257;  Keating 
v.  Spink,  3  Ohio  St.  105. 

42.  City  of  Opelika  v.  Daniel,  59 
Ala    211. 

43    Section  720,  U.  S.  R.  S. 

44.  Texas,  etc.,  R.  Co.  v.  Kuteman, 
54  Fed.  547. 

45.  Reinach  v.  Atlantic,  etc.,  R. 
Co.,  58  Fed.  33,  per  Brown,  J.: 
"The  rights  of  the  parties  in  this 
suit  are  protected  in  a  State  court. 
Whether  fully  protected  or  not  is  for 
us  to  determine.  We  cannot  say  here 
that  the  action  of  the  State  court  in 
confirming  an  agreement  for  the  ex- 
tension of  the  first  mortgage  has  been 
injudicious.  There  are  many  reasons 
for  saying  it  has  been  a  judicious  ac- 
tion. Great  difficulties  are  suggested 
in  the  way  of  an  immediate  fore- 
closure under  the  first  mortgage, 
■which  covers,  it  seems,  only  a  part  of 
tV>e   ror-d.   n.nd    a   fraction   of   347-388 


of  the  lease  of  a  branch  line  repre- 
sented to  be  the  most  valuable  fea- 
ture of  the  organization.  To  say  that 
the  rights  of  this  complainant  are  not 
fully  protected  in  the  State  court;  to 
pronounce  that  there  is  collusion  and 
fraud  there;  and  to  demand  of  us, 
virtually,  to  stop  the  progress  of  this 
suit,  and  to  sweep  the  subject  matter 
of  the  litigation  and  the  contentions 
of  these  parties  within  the  jurisdic- 
tion of  this  court— is  requiring  of  us 
more,  we  believe,  than  has  ever  been 
granted  in  any  court  of  the  United 
States.  We  cannot  better  conclude 
this  opinion  than  by  the  following 
quotation  from  the  decision  of  Mr. 
Justice  Bradley  in  Haines  v.  Carpen- 
ter, 91  U.  S.  254:  'A  mere  statement 
of  the  bill  is  sufficient  to  show  it  can- 
not be  sustained.  ...  In  the  first 
place,  the  great  object  of  the  suit  is 
to  enjoin  and  stop  litigation  in  the 
State  courts,  and  to  bring  all  the  liti- 
gated   questions    before    the    Circuit 


903 


§  001  Staying  Actions  and  Suits. 

etitutionality  has  been  affirmed  by  the  State  courts,  gives  the  con- 
demning party  a  right  to  proceed.46  Where,  however,  a  receiver 
appointed  by  a  Federal  court,  has  commenced  an  action  in  such 
court  to  determine  the  rights  of  the  parties,  an  injunction  may  be 
granted  to  restrain  one  of  the  parties  from  prosecuting  against  the 
receiver  a  similar  action  in  a  State  court  which  was  commenced 
after  the  appointment  of  the  receiver  and  the  institution  of  the 
suit  in  the  Federal  court.47  But  though  a  Federal  court  is  without 
authority  to  nullify  or  stay  the  proceedings  of  a  State  court,  it  is 
decided  that  it  may  through  the  injunctive  process  restrain  the 
plaintiff  in  a  judgment  from  enforcing  the  same,  and  thereby 
prevent  perpetration  of  a  wrong  upon  the  judgment  debtor,  for  in 
such  a  case  the  process  operates  upon  the  person,  and  not  against 
the  State  officers,  or  any  authorities  thereof." 

§  G01.  Same  subject;  enjoining  administrators. — The  prohibi- 
tion of  injunctions  against  the  State  courts,  referred  to  in  the  last 
preceding  section,  extends  to  all  cases  over  which  such  courts  first 
get  jurisdiction,  and  applies  to  the  officers  and  parties  in  the 
courts  as  well  as  to  the  courts  themselves.  Therefore,  a  Federal 
court  has  no  power,  on  the  complaint  of  a  legatee  and  an  executor 
under  a  will  probated  in  one  State,  to  enjoin  an  administrator 
appointed  in  another  State  from  distributing  the  funds  under  his 
control  to  the  heirs  at  law.49 

Court.      This   is    one    of    the   things  46.   Pennsylvania    R.    Co.    v.    Na- 

wliicli     the    Federal    courts    are    ex-  tional  Docks,  58  Fed.  929,  distinguish- 

pressly    prohibited    from    doing.      By  ing  Erhardt  v.  Boaro,  113  U.  S.  537, 

the  Act  of  March  2,  1793,  it  was  de-  5  S.  Ct.  565. 

clared  that  a  writ  of  injunction  shall  47.  Ward  v.  San  Diego  Land  &  T. 

not  be  granted  to  stay  proceedings  in  Co.,  79  Fed.  663. 

a  State  court.    .    .    .    This  objection,  48.     Schultz     v.     Highland     Gold 

alone,  is  sufficient  ground  for  sustain-  Mines  Co.,  158  Fed.  337. 

ing  the  demurrer  to  the  bill.     .     .     .  49.  Whitney    v.    Wilder,    54    Fed. 

The  State  courts  have  full  and  ample  554,  per  Toulmin,  J.:     "While  the  in-  i 

jurisdiction  of  the  cases,  and  no  suffi-  junction   is   directed   to  the  adminis- 

cient   reason   appears   for   interfering  trator  of  the  succession  and  estate  of 

with    their    proceedings.'      See,    also,  Myra     Clark     Gaines,     deceased,     re- 

Wilmer  v.   Railroad    Co.,    2    Woods,  straining  him  from  paying  out  to  the 

409.     The  motion  for   an  injunction  heirs  at  law  of  said  estate  any  moneys 

must  be  denied."  belonging  to  it,  its  purpose  and  effect 

904 


Staying  Actions  and  Suits. 


§G01a 


§  601a.  Injunctions  in  State  courts  against  proceedings  in 
Federal  courts. — Where  a  party  who  is  sued  in  a  Federal  court 
has  a  right  to  an  injunction  he  should  file  his  bill  on  the  equity 
side  of  such  court  as  no  State  tribunal  will  enjoin  such  suit.50  So 
a  State  court  will  not  enjoin  a  party  from  applying  for  the  benefit 
of  the  bankrupt  act  under  the  bankrupt  law  of  the  United  States.51 
And  where  an  action  is  brought  in  a  Federal  court,  a  State  court 
will  not  enjoin  it  on  the  ground  that  the  former  court  will  probably 
decide  it  in  a  manner  contrary  to  the  opinion  of  the  State  court.02 
And  the  fact  that  a  class  of  obligations  has  been  held  invalid  in  a 
State  court  and  may  be  held  valid  in  the  Federal  courts  is  no 
ground  for  a  State  court  enjoining  an  action  thereon  in  the  Federal 


are  to  interfere  with  the  pending  ad- 
ministration of  the  estate  in  the  pro- 
bate court  of  the  State  of  Louisiana, 
which  is  vested  with  exclusive  juris- 
diction of  the  same,  and  by  whose 
order  alone  the  administrator  would 
be  duly  authorized  to  distribute  and 
pay  over  any  money  belonging  to  it. 
The  heirs  at  law  of  the  deceased  peti- 
tion the  probate  court  that,  after  the 
payment  of  all  debts,  the  property  of 
the  estate  be  turned  over  to  them. 
The  practical  effect  of  the  injunction 
is  to  stay  proceedings  under  this  pe- 
tition. Should  a  decree  be  granted 
on  the  petition  by  the  probate  court, 
and  the  administrator  be  ordered  to 
comply  with  the  same,  he  would  be 
subject  to  diverse  and  conflicting  de- 
crees— that  of  the  State  court,  direct- 
ing him  to  distribute  the  funds  of  the 
estate  in  its  custody  and  under  its 
control  according  to  its  decree,  and 
that  of  the  Federal  court,  directing 
him  to  refrain  and  desist  from  dis- 
tributing such  funds.  It  was  said  by 
this  court  in  the  case  of  Railway  Co. 
v.  Kuteman,  54  Fed.  547  (decided  at 
this  term),  that  'there  is  not  in  our 
system  anything  so  unseemly  as  ri- 
valry   and    contention    between    the 


courts  of  the  State  and  the  courts  of 
the  United  States.'  The  framers  of 
our  statute  laws,  foreseeing  the  evils 
of  such  conflicting  jurisdiction,  have 
wisely  prohibited,  in  express  terms, 
the  granting  of  injunctions  to  stay 
proceedings  in  any  court  of  a  State. 
Rev.  Stat.,  §  720.  This  prohibition 
of  the  statute  extends  to  all  cases 
over  which  the  State  court  first  ob- 
tains jurisdiction,  and  applies  not 
only  to  injunctions  aimed  at  the  State 
court  itself,  but  also  to  injunctions 
issued  to  parties  before  the  court,  its 
officers  or  litigants  therein.  Diggs  v. 
Wolcott,  4  Cranch,  179,  2  L.  Ed.  587; 
Peck  v.  Jenness,  7  How.  G25,  12  L. 
Ed.  841,  846;  Dial  v.  Reynolds,  96 
U.  S.  340,  24  L.  Ed.  644." 

50.  City  of  Opelika  v.  Daniel,  59 
Ala.  211;  Bryan  v.  Hickson,  40  Ga. 
405;  Logan  v.  Lucas,  59  111.  237; 
Johnstown  Min.  Co.  v.  Morse,  44 
Misc.  R.  (N.  Y.)  504,  90  N.  Y.  Supp. 
107;  Town  of  Thompson  v.  Norris,  11 
Abb.  N.  C.  (N.  Y.)    163. 

51.  Fillingin  v.  Thornton,  49  Ga. 
384. 

52.  Town  of  Thompson  v.  Norris, 
11  Abb.  N.  C.  (N.  Y.)  163. 


905. 


§602 


Staying  Actions  and  Suits. 


^ 


court.0,1  Xor  will  a  State  court  interfere  by  injunction  against  a 
receiver  appointed  by  a  Federal  court  where  the  effect  of  such 
interference  would  be  to  disturb  the  receiver  in  his  possession  of 
the  property.  So  it  has  been  decided  that  a  State  court  has  no 
jurisdiction  to  entertain  a  suit  against  a  receiver  for  a  telephone 
company  appointed  by  a  Federal  court,  the  effect  of  which  would 
be  to  compel  him  to  reduce  the  rate  charged  complainant  for  tele- 
phone service  to  that  fixed  by  a  city  ordinance.54 

§  002.  Enjoining  further  proceedings  in  State  court  in  case  of 
removal. — The  Federal  Circuit  Court  has  authority  to  enjoin  the 
prosecution  in  a  State  court  of  a  case  which  has  been  legally  re- 
moved to  the  Federal  court,  but  which  the  State  court  refuses  to 
surrender  jurisdiction  over;  and,  while  this  authority  will  not  be 
exercised  when  the  question  is  merely  one  of  inconvenience,  yet 
tho  injunction  will  bo  granted  if  otherwise  parties  are  likely  to 
suffer  serious  detriment  by  the  taking  of  their  property  or  other 
irreparable  injury.55 


5.3.  Town  of  Venice  v.  Woodruff, 
62  N.  Y.  462,  20  Am.  Rep.  495. 

54.  Rogers  v.  Chippewa  Circuit 
Judge,    135   Mich.   79. 

55.  Abeel  v.  Culberson,  56  Fed. 
329,  per  McCormick,  J. :  "  We  do  not 
doubt  the  power  of  the  Circuit  Court 
to  enjoin  parties  from  proceeding  in 
the  State  court  in  the  removed  causes 
where  the  State  court  has  refused  to 
surrender  jurisdiction.  We  are 
mindful  of  the  fact  that  in  very  many 
cases  where  the  State  courts  have  so 
refused  to  surrender  jurisdiction, 
either  the  parties  have  refrained  from 
asking  the  Circuit  Court  to  stay  sub- 
sequent proceedings  by  the  State 
court,  or  the  Circuit  Court  has  de- 
clined to  grant  such  relief  when 
asked.  In  our  view,  it  must,  however, 
be  conceded  that  the  cases  cited  by 
counsel  for  the  complainant  in  this 
motion  from  the  Supreme  Court  and 


from  eminent  judges  at  the  circuit, 
amply  support  and  settle  the  power  in 
the  Circuit  Court  to  grant  such  re- 
lief in  a  proper  case,  and  indicate  and 
illustrate  the  kind  of  case  that  will 
warrant,  and  even  require,  the  grant- 
ing of  such  relief.  The  delicacy  of  the 
situation  justifies  the  exercise  of  a 
large  discretion,  and  has  been  rightly 
judged  to  demand  from  the  Circuit 
Court  the  exercise  of  such  conserva- 
tive and  provident  actions  as  has 
usually  resulted  in  their  declining  to 
exercise  the  conceded  power.  When, 
however,  serious  detriment  (no  mere 
inconvenience,  or  customary  court 
cost9)  is  likely  to  be  inflicted  on  par- 
tics  by  the  taking  of  their  property, 
or  other  irreparable  injury  to  their 
interests,  not  only  the  right  to  stay 
such  proceedings  by  injunction  is 
clear,  but  the  duty  becomes  impera- 
tive.    We  consider  that  this  applica- 


906 


Staying  Actions  and  Suits. 


§602a 


§  602a.  Where  tribunal  has  exclusive  jurisdiction. — Where 
exclusive  jurisdiction  is  conferred  by  express  provision  of  law 
upon  a  certain  court  or  tribunal  with  full  power  to  hear  and  deter- 
mine the  matters  in  controversy  a  court  of  equity  will  not  as  a 
general  rule  grant  an  injunction  restraining  a  proceeding  before 
such  tribunal.  So  exclusive  jurisdiction  in  respect  to  the  deter- 
mination of  the  priority  of  an  invention  being  vested  in  the  Patent 
Commissioner  a  court  of  equity  will  not  interfere  by  injunction  to 
restrain  such  a  proceeding  before  him.56  And  statutory  regula- 
tions for  the  settlement  of  election  contests  are  exclusive  of  all 
others  and  a  court  of  equity  has  no  jurisdiction,  when  not  specially 
conferred  upon  it,  to  enjoin  the  prosecution  of  a  proceeding  in 
accordance  with  the  statute.57  And  a  court  of  equity  will  not 
restrain  several  creditors  from  proving  their  claims  against  an 
insolvent  debtor  in  the  court  of  insolvency  where  the  same  questions 
of  law  are  raised  in  each  case  unless  it  appears  that  there  is  a  prac- 


tion  presents  such  a  case.  Here  is 
an  insolvent  corporation  whose  prop- 
erty was  taken  into  the  custody  of 
the  Circuit  Court  for  this  district, 
and  is  being  held  by  its  receiver.  It 
will  necessarily,  and,  it  seems  to  us, 
very  materially,  embarrass  the  Cir- 
cuit Court  in  the  exercise  of  its  ju- 
risdiction of  this  property  to  have 
this  removed  cause  proceeded  with  in 
the  State  court.  .  .  .  These  rea- 
sons, briefly  stated,  have  led  us  to 
conclude  that  the  injunction  now  asked 
should  be  granted.  Counsel  for  the 
motion  will  prepare,  and  submit  for 
passing,  the  proper  decree  in  accord- 
ance with  the  prayer  and  the  views 
we  have  just  expressed.  Judge  Bry- 
ant authorizes  me  to  announce  that 
he  concurs  fully  in  this  decision  and 
in  the  reasoning  on  which  it  is  based. 
The  counsel  cited,  and  the  court  con- 
sidered and  referred  to,  the  following 
authorities:  United  States  v.  Louisi- 
ana, 123  U.  S.  32,  8  S.  Ct.  17,  31  L. 


Ed.  69;  Ames  v.  Kansas,  111  U.  S. 
449,  4  S.  Ct.  437,  28  L.  Ed.  482; 
Omaha  Horse  Ry.  Co.  v.  Cable  Tram- 
way Co.,  32  Fed.  727;  Railroad  Co. 
v.  Mississippi,  102  U.  S.  135,  20  L. 
Ed.  96;  Lowry  v.  Railroad  Co.,  40 
Fed.  84;  State  v.  Illinois  Cent.  R. 
Co.,  33  Fed.  721;  French  v.  Hay,  22 
Wall.  250,  22  L.  Ed.  854,  857; 
Dietzsch  v.  Huidekoper,  103  U.  S. 
494,  26  L.  Ed.  497;  Fisk  v.  Railroad 
Co.,  10  Blatchf.  518;  Sharon  v.  Terry, 
36  Fed.  365 ;  Railroad  Co.  v.  Ford,  35 
Fed.  170;  Wagner  v.  Drake,  31  Fed. 
849;  Railway  Co.  v.  Cox,  145  U.  S. 
601,  12  S.  Ct.  905,  36  L.  Ed.  829, 
832;  Bank  v.  Calhoun,  102  U.  S.  262, 
26  L.  Ed.  101 ;  In  re  Ayers,  123  U.  S. 
443,  8  S.  Ct.  164,  31  L.  Ed.  216; 
Pennoyer  v.  McConnaughy,  140  U.  S. 
1,  11  S.  Ct.  699,  33  L.  Ed.  363." 

56.  Griffith   v.   Dodgson,   103  App. 
Div.  (N.  Y.)  542,  93  N.  Y.  Supp.  155. 

57.  Ex  parte  Wimberly,  57  Miss. 
437. 


907 


§  G03  Stating  Actions  and  Suits. 

tical  necessity  for  such  interposition  to  prevent  vexatious  litiga- 
tion.58 A  court  of  equity  also  will  not  interfere  by  injunction  to 
enjoin  proceedings  in  probate  courL>  and  determine  matters  therein 
cognizable,  such  jurisdiction  being  nested  exclusively  in  the  latter 
courts  with  the  right  to  the  parties  to  appeal  to  tin-  higher  court  as 
the  supreme  court  of  probate.59  So  in  a  case  in  Alabama  it  is 
decided  that  where  the  probate  court  has  assumed  jurisdiction 
in  the  matter  of  a  settlement  or  other  function  connected  with  thu 
administration  of  an  estate,  the  chancery  will  not  enjoin  such 
proceedings  on  grounds  which  involve  simple  questions  of  fact 
and  which  are  matters  of  defense  which  the  probate  court  is  com- 
petent to  determine.60 

§  603.  Enjoining  equity  action  in  same  court. — It  is  a  general 
rule  that  an  action  cannot  bo  maintained  to  restrain  the  prosecution 
of  a  former  action  in  the  same  court,  unless  it  clearly  appears  that 
full  and  complete  justice  can  not  be  done  in  the  earlier  action.61 
And  while  the  ordinary  rule  is  thai  pending  proceedings  in  equity 
in  the  same  court  will  not  be  restrained  in  a  subsequent  suit  in 
equity  between  the  same  parties,62  yet  this  rule  must  yield  where  a 
party  aggrieved  cannot  have  full  and  adequate  relief  in  the  original 
suit  in  equity.63  That  one  has  a  pending  petition  to  be  made  party 
to  a  cause  in  equity,  and  another  pending  petition  to  set  aside 
the  decree  rendered  in  said  cause,  will  not  hinder  him  from  filing 
his  own  bill  to  recover  proceeds  of  the  decree  from  one  of  the 
prevailing  parties,  and  to  enjoin  the  execution  of  the  decree,  so 
as  to  hold  up  such  proceeds  to  abide  the  result  of  his  bill.64     In 

58.  Fellows  v.  Spaulding,  141  there  are  no  averments  showing  why 
Mass.  89,  6  N.  E.  548.  he  cannot  protect  himself  by  plead- 

59.  Clarke  v.  Clarke,  7  R.  I.  45;  ing  such  defenses  thereto  as  iie  may 
Brown  v.  Brown,  66  Vt.  81,  28  Atl.  think  necessary  or  proper  for  his 
6(J6-  protection.      Redd    v.    Blandford,    54 

60.  Newsom  v.  Thornton,  66  Ala.  Ga.  123.  See,  also,  Dayton  v.  Relf, 
311.  34   Wis.  86. 

61.  Pond  v.  Harwood,  139  N.  Y.  63.  Mann  v.  Flower,  26  Minn.  479, 
111,  34  N.  E.  768;    Dayton  v.  Relf,  5  N.  W.  365. 

34  Wis.  86.  64.  Alspaugh    v.    Adams,    80    Ga. 

62.  The    prosecution   of  a   bill    in       345,  5  S.  E.  496. 
equity    will    not    be   enjoined    where 

908 


Staying  Actions  and  Suits  §  604 

New  York  it  has  been  decided  that  a  court  of  equity  has  power, 
by  injunction,  to  restrain  proceedings  in  another  equitable  action 
in  the  same  court,  and  that  the  Supreme  Court  in  one  judicial 
district  has  jurisdiction  in  an  action  brought  for  that  purpose,  to 
restrain,  by  injunction,  proceedings  in  another  action  pending  in 
that  court  in  another  district.  It  was,  however,  declared  in  this 
case  that  such  jurisdiction  should  not  be  exercised  except  in  ex- 
treme cases.65  An  injunction  will  not  lie  to  restrain  the  prosecu- 
tion of  an  action  begun  in  another  county  in  which  plaintiff's  pre- 
decessors in  title  intervened  and  answered,  and  to  which  he  was 
made  a  party,  where  the  real  object  of  the  injunction  action  seems 
to  be  to  change  the  venue  of  the  former  action  to  another  county.66 

§  G04.  Same  subject. — A  defendant  in  an  action  for  an  account- 
ing cannot  maintain  an  equitable  action  in  the  same  or  another 
court  against  the  plaintiff  in  the  first  action  and  a  third  person 
for  an  accounting,  and  for  an  injunction  to  restrain  the  further 
prosecution  of  the  first  action,  where  all  the  relief  claimed  by 
plaintiff  in  the  second  action  and  to  which  he  shows  himself 
entitled,  could  be  secured  in  the  first  action ;  and  the  fact  that  such 
third  person  is  a  necessary  party  to  the  controversy  between  the 
parties  to  the  first  action  does  not  entitle  defendant  to  maintain 
the  second  action,  since  he  could  by  motion,  or  the  court  could  on 
its  own  motion,  make  such  third  person  a  party  to  the  first  action.67 

65.  Erie   Railway  Co.  v.   Ramsey,  the  plaintiff  to  pay  over  moneys  re- 

45  N.  Y.  637.  ceived   by   him    in    the   character   of 

But  see  Schell  v.  Erie  R.  Co.,  51  attorney  of  that  court. 

Barb.    (N.  Y.)    368.     And  see  gener-  66.   Cheney  v.  Schuyler,  20  N.  Y. 

ally  en  this  point,  Schuyler  v.  Pelis-  Supp.  546. 

sicr,  3  Edw.  Ch.  (N.  Y.)   191;  Sieve-  67.  Pond  v.  Harwood,   139  N.   Y. 

king  v.  Behrens,  2  Myl.  &  Cr.  581;  111,  34  N.  E.  768,  per  Maynard,  J.: 

Prudential  Assur.  Co.  v.  Thomas,  L.  "  There    can    be    no    doubt    that    the 

R.  3  Ch.  App.  74.  Supreme  Court  may  in  a  proper  case 

In  Saxton  v.  Wyckoff,  6  Paige  Ch.  perpetually   stay   the   proceedings   of 

(N.   Y.)    182,   it  is  decided  that  an  the   plaintiff   in  an  equitable  action 

injunction   ought  not  to  be   granted  at  the  suit  of  his  adversary  in   an- 

tj  ftay  -the  defendant   trom   making  other  equitable  action.     Formerly  the 

an  application  to  the  equitable  pow-  court  of  chancery  denied   the   exist- 

ers  of  the  Supreme  Court  to  compel  ence    of   the    jurisdiction,    and    said 

909 


§005 


Staying  Actions  and  Suits. 


Kor  is  such  second  action  maintainable  for  the  purpose  of  enabling 
the  plaintiff  therein  to  enforce  an  equitable  set-off  against  the 
plaintiff  in  the  first  action,  in  the  form  of  a  judgment  purchased 
by  him  after  the  first  action  was  commenced,  since  whatever  equit- 
able right  of  set-off  he  has  was  available  in  the  first  action.68 

§  G05.  Action  not  enjoined  because  of  foreign  suit. — An  action 
at  law  will  not  be  enjoined  from  the  mere  fact  that  a  bill  in  equity 
is  pending  in  another  State  concerning  the  same  subject  matter, 
though  the  parties  in  both  suits  are  the  same.09    And  the  pendency 


that  an  application  for  such  a  stay 
could  scarcely  be  considered  as  seri- 
ously made.  Medlock  v.  Cogburn, 
1  Rich.  Eq.  477;  McReynolils  v.  liar- 
ehaw,  2  [red.  Eq.  196.  Although  the 
power  now  exists  it  cannot  be  arbi- 
trarily asserted.  The  grant  of  a  tem- 
porary injunction  is  usually  dis- 
cretionary, but  not  so  with  a  decree 
allowing  a  perpetual  stay.  Facts 
must  be  shown,  which  according  to 
the  established  rules  for  the  admin- 
tration  of  equity,  will  authorize 
that  kind  of  relief.  A  subsequent  ac- 
tion cannot  be  maintained  to  restrain 
the  prosecution  of  another  action  in 
the  same  court,  unless  it  clearly  ap- 
pears that  full  and  complete  justice 
cannot  be  obtained  in  the  earlier  ac- 
tion. Hall  v.  Fisher,  1  Barb.  Ch.  53; 
Hayward  v.  Hood,  39  Hun,  596;  Cow- 
per  v.  Theall.  40  Hun,  520;  Erie  R. 
Co.  v.  Ramsey,  45  N.  Y.  637;  Wal- 
lack  v.  Society,  67  N.  Y.  23.  As  was 
said  by  Reynolds,  J.,  in  Savage  v. 
Allen,  54  N.  Y.  458:  'The  proposi- 
tion that  a  separate  action  may, 
under  our  present  system,  be  main- 
tained to  restrain  by  injunction  the 
proceedings  in  another  suit  in  the 
same  or  another  court,  between  the 
same  parties,  where  the  relief  sought 
in  the  later  suit  may  be  obtained  by 
a  proper  defense  to  the  former  one, 


has  long  since  been  exploded,  or  if 
not,  should  be  without  delay.'  As  an 
action  for  an  accounting,  all  the  re- 
lief which  the  plaintiff  claims,  and  to 
which  he  has  been  found  entitled,  in 
this  action,  could  have  been  secured 
in  the  apjKdlant'a  action.  If  .Judd 
was  a  necessary  party  to  a  complete 
determination  of  the  controversy,  he 
could  have  been  made  a  party  to 
that  action  upon  motion  of  the  plain- 
tiff in  this  action,  or  the  court  could 
upon  its  own  motion,  have  directed 
that  he  be  brought  in,  whenever  it 
appeared,  in  the  progress  of  the  ac- 
tion, that  his  presence  was  required 
for  a  full  and  final  adjudication  of 
the  rights  of  the  parties.  Code,  5 
452." 

68.  Pond  v.  Harwood,  139  N.  Y. 
111.  34  N.  E.  768. 

69.  Mutual  Life  Ins.  Co.  v.  Brune, 
96  U.  S.  588,  24  L.  Ed.  737,  per 
Strong,  J.:  "A  bill  in  equity  was 
pending  in  a  foreign  jurisdiction 
when  the  appellee's  suits  at  law  were 
brought  to  enforce  the  payment  of 
the  policies  to  Mrs.  Barry  rather  than 
to  Brune  or  his  assignee,  and  that 
both  the  present  complainant  and  de- 
fendant were  parties  to  that  bill. 
This  we  think  was  not  sufficient  to 
justify  the  injunction  for  which  the 
appellant  prayed.     At  law  the  pen- 


910 


Staying  Actions  and  Suits. 


§606 


of  a  prior  suit  in  a  State  court  is  not  a  bar  to  a  subsequent  suit 
in  a  Federal  Circuit  Court,  though  the  suits  are  between  the  same 
parties  and  for  the  same  cause  of  action.70 

§  606.  Enjoining  proceedings  in  another  State. — Where  the 
subject  matter  of  a  controversy  is  situated  within  another  State  or 
country,  but  the  parties  are  within  the  jurisdiction  of  the  court, 
they  may  be  enjoined,  in  a  proper  case,  from  taking  any  proceeding 
affecting  the  subject  matter.71  And  while  it  is  a  matter  of  great 
delicacy,  as  leading  to  the  danger  of  conflicts  of  jurisdiction,  it  is 
well  settled  that  a  court  of  equity  may  restrain  a  party  of  whom 
it  has  jurisdiction  from  prosecuting  a  suit  in  the  courts  of  another 
State.72    So  it  has  been  declared  that  a  court  of  equity  may  inter- 


dency  of  a  former  action  between  the 
same  parties  for  the  same  cause  is 
pleadable  in  abatement  to  a  second  ac- 
tion, because  the  latter  is  regarded  as 
vexatious.  But  the  former  action  must 
be  in  a  domestic  court;  that  is  in  a 
court  of  the  State  in  which  the  sec 
ond  action  has  been  brought.  Maule 
v.  Murray,  7  T.  R.  470;  Buckner  v. 
Finley,  2  Pet.  580;  Bowne  v.  Joy,  9 
Johns.  221;  Smith  v.  Lathrop,  44  Pa. 
St.  320.  The  rule  in  equity  is  anal- 
ogous to  the  rule  at  law.  Story,  Eq. 
PI.,  §  741.  In  Poster  v.  Vassall,  3 
Atk.  587,  Lord  Hardwicke  said:  'The 
general  rule  of  courts  of  equity  with 
regard  to  pleas  is  the  same  as  in 
courts  of  law,  but  exercise  with  a 
more  liberal  discretion.'  In  Lord 
Dillon  v.  Avares,  4  Ves.  357,  a  plea 
of  a  pending  suit  in  a  court  of  chan- 
cery in  Ireland  was  overruled  in  the 
English  court  of  chancery.  Certain  it 
is  that  the  plea  of  a  suit  pending  in 
equity  in  a  foreign  jurisdiction  will 
not  abate  a  suit  at  law  in  a  domes- 
tic tribunal.  This  was  shown  in  a 
very  able  decision  made  by  the  Su- 
preme Court  of  Connecticut  in  Hatch 
v.  Spofford,  22  Conn.  485,  where  the 


authorities  are  learnedly  reviewed." 
See,  also,  Lalliu  v.  Brown,  7  Met. 
570;  Blanchard  v.  Stone,  10  Vt.  234; 
Imlay  v.  Ellefson,  2  East,  457 ;  Ustell 
v.  Lepage,  10  Eng.  L.  &  Eq.  255; 
Walsh  v.  Durkin,  12  Johns.  (N.  Y.) 
101;  Mitchell  v.  Bunch,  2  Paige  (N. 
Y.),  020. 

70.  Stanton  v.  Embrey,  93  U.  S. 
548;  Crescent  City  Co.  v.  Butchers' 
Co.,  12  Fed.  225.  And  see  Cox  v. 
Mitchell,  7  C.  B.  (N.  S.)  55;  Wood 
v.  Lake,  13  Wis.  91;  Wadleigh  v. 
Veasie,  3  Sumn.  107;  Loring  v. 
Marsh,  2  Cliff.  322;  Salmon  v.  Woot- 
ton,  9  Dana,  422;  Yelvertou  v.  Con- 
ant,  18  N.  H.  124;  Davis  v.  Mor- 
ton, 4  Bush  (Ky.),  444. 

71.  See  §§  75-82,  ante. 

There  is  no  question  as  to  the 
right  to  restrain  a  person  over 
whom  the  court  has  jurisdiction  from 
bringing  a  suit  in  a  foreign  State. 
Royal  League  v.  Kavanagh,  233  111. 
175,  84  N.  E.  178. 

72.  United  States. — Gage  v.  River- 
side Trust  Co.,  80  Fed.  984. 

Arkansas. — Pickott  v.  Ferguson,  45 
Ark.  177,  per  Smith,  J.:  '  The  juris- 
diction  is   established   by   the   clear 


911 


§606a 


Staying  Actions  and  Suits. 


fere  to  prevent  the  prosecution  of  an  action  which  is  inequitable 
and  unconscionable  even  though  such  action  is  pending  in  the 
courts  of  another  State  and  without  regard  to  whether  tho  action 
in  the  former  tribunal  was  commenced  before  or  after  the  domestic 
tribunal  may  have  acquired  jurisdiction  over  it.73  And  in  a  suit 
by  a  receiver  to  restrain  a  resident  creditor  from  maintaining  a 
.suit  in  another  State  against  the  corporation  for  which  the  receiver 
has  been  appointed,  it  is  no  defense  that  the  plaintiff  has  an  ade- 
quate remedy  at  law.74 

§  GOGa.  Same  subject;  suit  in  one  State  to  evade  laws  of 
another  State. — A  suit  instituted  in  one  Slate,  l>v  one  who  is  a 
citizen  of  another  State,  in  which  the  defendant  also  resides,  may 
be  enjoined  by  a  court  of  equity  of  the  latter  State  where  it  appears 
that  the  bringing  of  the  suit  is  for  the  purpose  of  evading  or 
defeating  the  operation  of  the  laws  of  the  State  where  both  parties 
reside.75  So  a  party  to  a  contract  is  entitled  to  an  injunction 
restraining  the  prosecution  in  another  State  of  an  action  upon 
such  contract  where  the  purpose  of  such  action  is  to  avoid  the 
statutes  of  tho  State  in  which  the  contract  was  made  and  to  be 


weight  of  authority,  as  well  as  by  the 
necessity  of  interposition,  under 
special  circumstances,  where  the  for- 
eign suit  appears  to  be  ill  calculated 
to  answer  the  ends  of  justice.  French 
v.  Hay,  22  Wall.  250;  Dehon  v.  Fos- 
ter. 4  Allen,  545;  Bushby  v.  Munday, 
5  Madd.  Ch.  297;  Carron  Iron  Co.  v. 
Maclaren,  5  H.  L.  Cas.  410,  438." 

California. — Spreckles  v.  Hawaiian 
C.  &  S.  Co.,  117  Cal.  377,  40  Pac.  353. 

Nebraska. — Hartford  Life  A.  I.  Co. 
v.  Cummings,  50  Neb.  23G,  GO  N.  W. 
782. 

England.— Christian  v.  Christian, 
78  Law  T.  Rep.  86. 

73.  Dinsmore  v.  Neresheimer,  32 
Hun    (N.    Y.),   204. 

74.  Davis  v.  Butters  Lumber  Co., 
132  N.  C.  232.  43  S.  E.  650.  The 
court  said:     "To  the  point  presented 


by  the  defendant's  demurrer  are 
terms  that  the  plaintiff  has  no  equity 
because  he  has  a  remedy  at  law,  easy 
and  adequate,  it  should  be  said  that 
the  courts  of  this  State  will  not  per- 
mit one  of  its  own  citizens  to  com- 
pel the  officer  of  the  court  to  go  into 
a  foreign  jurisdiction  to  litigate  his 
rights.  It  is  the  policy  and  usually 
the  rule  of  the  law  to  compel  all 
claims  to  assets  in  the  hands  of  the 
receiver  to  be  litigated  in  the  original 
cause.  This  coure  prevents  confu- 
sion and  conllicts  and  saves  costs  and 
expenses."     Per  Connor,  J. 

75.  Miller  v.  Gittings.  85  Md.  601, 
37  Atl.  372,  60  Am.  St.  Rep.  352, 
37  L.  R.  A.  654.  Compare  Edgell  v. 
Clarke,  10  App.  Div.  (N.  Y.)  199,  45 
N.  Y.  Supp.  979. 


912 


Staying  Actions  and  Suits. 


§606a 


performed  and  in  which  the  parties  reside.76  The  principle  has 
also  frequently  been  applied  where  proceedings  have  been  com- 
menced in  another  State  for  the  purpose  of  avoiding  the  exemption 
laws  of  the  State  in  which  the  parties  reside.77  So  it  has  'been  held 
that  an  injunction  will  lie  to  restrain  a  resident  of  Indiana  from 
prosecuting  an  attachment  proceeding  against  another  resident  in 
the  courts  of  another  State,  in  violation  of  an  Indiana  statute 
which  makes  it  an  offense  to  send  a  claim  against  a  debtor  out  of 
the  State  for  collection,  in  order  to  evade  the  exemption  laws.78 


76.  Sandage  v.  Studabaker  Bros. 
Mfg.  Co.,  142  Ind.  148,  41  N.  E.  380, 
51  Am.  St.  Rep.  105,  34  L.  R.  A. 
3G3. 

77.  Indiana. — Wilson  v.  Joseph, 
107  Ind.  490,  8  N.  E.  61G. 

Iowa. — Teager  v.  Landsley,  69 
Iowa,  725,  27  N.  W.  739. 

Missouri. — Kelly  v.  Siefert,  71  Mo. 
App.   143. 

Neio  Jersey. — Macgarum  v.  Moon, 
63  N.  J.  Eq.  580,  53  All.  179. 

IVisconsin. — Griggs  v.  Docter,  89 
Wis.  101,  01  N.  W.  701,  30  L.  R.  A. 
360,  40  Am.  St.  Rep.  724. 

78.  Wilson  v.  Joseph,  107  Ind. 
490,  8  N.  E.  616,  per  Elliott,  J.: 
"  Oar  own  court  has  recognized  and 
enforced  this  equitable  principle,  aa 
indeed,  all  the  courts  have  done, 
without  any  material  diversity  of 
opinion.  Bethell  v.  Bethell,  92  Ind. 
318.  The  principle  asserted  by  these 
authorities  supplies  the  initial  propo- 
sition for  our  decision,  and  the  only 
possible  doubt  that  can  arise  is 
whether  it  applies  to  such  a  case  as 
the  present.  The  authorities  do  not 
apply  it  to  such  cases,  and  in  our 
judgment  they  proceed  on  sound  and 
satisfactory  reasoning.  In  Snook  v. 
Snetzer,  25  Ohio  St.  516,  the  ques- 
tion was  presented,  as  it  is  here,  and 
it  was  held  that  an  injunction  would 
lie.     The  same  view  of  the  law  was 


asserted  in  Dehon  v.  Foster,  4  Allen, 
545,  where  it  was  said:  'An  act 
which  is  unlawful  and  contrary  to 
equity,  gains  no  sanction  or  validity 
by  the  mere  form  or  manner  in 
which  it  is  done.  It  is  none  the  less 
a  violation  of  our  laws,  because  it  is 
effected  through  the  instrumentality 
of  a  process  which  is  lawful  in  a  for- 
eign tribunal.  By  interposing  to  pre- 
vent it,  we  do  not  interfere  with  the 
jurisdiction  of  courts  in  other  States, 
or  control  the  operation  of  foreign 
laws.  We  only  assert  and  enforce 
our  own  authority  over  persons 
within  our  jurisdiction,  to  prevent 
them  from  making  use  of  means  by 
which  they  seek  to  countervail  and 
escape  the  operation  of  our  own 
laws,  in  derogation  of  the  rights  and 
to  the  wrong  and  injury  of  our  own 
citizens.'  In  the  recent  case  of  Cun- 
ningham v.  Butler,  142  Mass.  47,  6 
N.  E.  782,  the  general  principle  which 
rules  here  is  strongly  asserted  and 
rigidly  enforced.  The  question  came 
before  the  court  in  Engel  v.  Scheuer- 
man,  40  Ga.  200,  in  the  same  form 
as  it  comes  before  us,  and  it  was  held 
that  an  injunction  would  lie.  What 
we  have  said  of  the  case  just  men- 
tioned applies  to  Keyser  v.  Rice,  47 
Md.  203,  where  the  precise  question 
was  adjudicated.  The  Supreme  Court 
of  Kansas,  in  two  recent  cases,  adopts 


913 


58 


§§  GOGb,  C07         Staying  Actions  and  Suits. 

§  60Gb.  Enjoining  appeals. — Where  under  the  constitution  and 
laws  of  a  State  a  party  has  a  clear  right  to  an  appeal,  an  injunction 
will  not  be  granted  to  prevent  such  an  appeal.79  So  in  a  case  in 
New  York  it  was  decided  that  a  party  should  not  be  restrained 
from  perfecting  his  appeal  until  he  had  formally  and  in  an  ef- 
fective way  surrendered  such  right  and  that  if  there  is  any  good 
reason  to  question  the  validity  of  an  appeal  it  can  be  well  and 
sufficiently  done  by  motion  in  the  original  action.80  And  in  an 
early  case  in  Mississippi  it  was  decided  that  where  the  bill  con- 
tains no  charges  of  fraud  as  to  the  parties  who  took  the  exceptions 
and  merely  alleges  certain  mistakes  and  omissions  as  to  one  or  two 
facts  there  is  no  ground  for  enjoining  the  prosecution  of  a  writ  of 
error.81 

§  G07.  In  cases  of  usury. — Equity  will  enjoin  a  trustee  from 
proceeding  to  sell,  under  a  deed  of  trust  given  for  the  purpose  of 
securing  a  loan  of  money  at  a  usurious  rate  of  interest.82  But  an 
action  to  enjoin  a  mortgage  sale,  on  the  ground  that  usurious 
interest  which  has  been  paid  should  be  applied  on  the  mortgage 
debt,  cannot  be  maintained,  as  the  effect  of  such  an  application 
would  be  to  allow  the  recovery  of  the  usurious  interest;83  for  in 
such  cases  equity  will  follow  the  law  and  refuse  to  aid  a  party 
who  has  paid  such  unlawful  interest  to  recover  it  back.84  Again, 
though  it  is  provided  by  Code  that  the  charging  of  usurious  in- 
terest shall  be  deemed  a  forfeiture  of  the  entire  interest,  yet  a 
person  who  seeks  in  equity  to  enjoin  a  sale  under  a  mortgage  bear- 
ing usurious  interest,  must  pay  the  principal  and  legal  interest,  on 
the  principle  that  he  who  would  have  equity  must  do  equity.85 

substantially  the  same  views  as  those  81.  Ford  v.  Weir,  24  Miss.  563. 

asserted    in    the   cases    to   which    we  82.   Hooker    v.    Austin,    41    Miss. 

have      .referred.        Zimmerman       v.  717. 

Franke,    34    Kan.    650.    9    Pac.    747;  83.   Livingston  v.   Burton,   43   Mo. 

Missouri  Pacific  R.  VV.  Co.  v.  Maltby,  App.   272. 

34  Kan.  125,  8  Pac.  235."     See,  also,  84.  Murdock  v.  Lewis,  26  Mo.  App. 

§  412,  ante,  and  the  cases  there  cited.  247. 

79.  State  v.  Jacksonville,  P.  &  M.  85.  Carver  v.  Brady,  104  N.  C. 
R.  Co.,   15  Fla.  201.  219,  10  S.  E.  565;  Cook  v.  Patterson, 

80.  Kilmer  v.  Bradley,  45  N.  Y.  103  N.  C.  127,  9  S.  E.  402;  Manning 
Sup«r.  Ct.    (13  J.  &  S.)    585.  v.   Elliott,   92  N.   C.  48;    Purnell  v. 

914 


Staying  Actions  and  Suits.  §  607 

And  a  similar  conclusion  has  been  reached  in  Illinois.86  And  where 
there  were  outstanding  notes  against  plaintiffs,  a  great  part  of 
which  represented  usurious  interest  on  former  evidences  of  in- 
debtedness, which  had  been  renewed,  and  by  which  such  interest 
was  made  to  represent  principal,  and  the  notes  were  held  by  a 
party  having  notice  of  the  usury,  and  were  about  to  mature,  and 
to  be  transferred  to  an  innocent  holder,  it  was  held  that  the 
plaintiffs  were  entitled  to  injunctive  relief.87  But  where,  on  a 
bill  filed  by  the  mortgagor  to  enjoin  a  foreclosure  sale,  on  the 
ground  that  the  mortgage  debt  and  interest  had  been  paid,  it 
appeared  that  the  alleged  payment  consisted  in  part  of  usurious 
interest,  of  which  the  assignee  of  the  mortgage  had  no  notice,  it 
was  held  that  the  mortgagor  was  not  entitled  to  an  injunction,  but 
would  have  been  if  the  assignee  had  taken  the  mortgage  with  notice 
of  the  usury.88  In  an  early  case  in  New  York,  where  an  action  at 
law  was  commenced  to  recover  upon  a  contract  alleged  to  be 
usurious,  and  the  defendant  in  the  action  filed  a  bill  in  chancery 
praying  for  an  injunction  to  restrain  the  proceedings,  but  alleged 
no  defect  in  the  means  of  establishing  his  defense  at  law,  it  was 
held  that  the  bill  could  not  be  sustained.89  And  in  an  action 
brought  to  avoid  a  promissory  note  on  the  ground  of  usury,  and  to 
restrain  a  suit  at  law  commenced  thereon,  the  usurious  contract 
must  be  substantially  set  forth  in  the  complaint  and  must  be  proved 
as  laid.90 

Vauglian,  82  N.  C.  134;   Simonton  v.  And  see  Equitable  Mut.  Land  Assoc. 

Lanier,  71  N.  C.  498.  v.  Becker,  45  Md.  632. 

86.  Tooke  v.  Newman,  75  111.  215.  89.  Minturn  v.  Farmers'  Loan  & 
See,  also,  Walker  v.  Cockey,  38  Md.  T.  Co.,  3  N.  Y.  498.  See,  also,  Atkin- 
75;  Powell  v.  Hopkins,  38  Md.  1;  son  v.  Allen,  71  Fed.  58,  17  C.  C.  A. 
Hill  v.  Reifsnider,  39  Md.  433.  570,  36  U.  S.  App.  255. 

87.  Willielmson  v.  Bentley,  25  Neb.  90.  Morse  v.  Cloyes,  11  Barb.   (N. 
473.     And  see  Farwell  v.  Meyer,  35  Y.)   100.                                                     $ 
111.  40. 

88.  Gantt  v.  Grindall,  49  Md.  310. 


915 


§§  008,  609  To  Aid  Other  Remedies. 


CHAPTER  XX. 

To  Aid  Other  Remedies. 

Section  608.  The  auxiliary  usefulness  of  injunctions. 

609.  In  aid  of  execution. 

610.  Same  subject — Under  inherent  equity  powert. 

611.  In  aid  of  receivers. 

612.  To  aid  writ  of  possession. 

613.  In  aid  of  assignments  for  benefit  of  creditors. 

614.  In  aid  of  relief  against  usury. 

Section  608.  The  auxiliary  usefulness  of  injunctions. — The 
adaptability  of  the  remedy  by  injunction  to  the  circumstances 
which  require  its  exercise  has  already  been  noticed.1  The  chief 
characteristic  of  the  preliminary  injunction  is  its  auxiliary  useful- 
ness as  an  incident  to  the  action,  pending  which  it  is  grant,  d.3 
Injunctions  in  aid  of  attachments  have  already  been  considered;3 
as  have  also  injunctions  in  aid  of  specific  performance.4  As  a 
general  rule,  attaching  creditors  cannot,  before  judgment,  have 
an  injunction  to  prevent  execution  sales  of  their  debtor's  property, 
on  the  ground  of  collusion  between  him  and  his  assignee  for  the 
benefit  of  creditors.5  But  where  the  owner  of  land  has  made  a 
parol  contract  to  sell  it,  and  the  purchaser  has  entered  into  pos- 
session, and  made  expensive  improvements,  and  files  a  bill  for 
specific  performance  and  to  enjoin  the  vendor  from  removing 
timber  and  interfering  with  plaintiff's  possession  and  making  any 
further  transfer  of  the  title  to  the  land,  and  the  evidence  is  con- 
flicting, there  is  no  abuse  of  discretion  in  granting  a  preliminary 
injunction  and  keeping  matters  in  statu  quo  until  the  final  hear- 
ing.6 

§  609.  In  aid  of  execution. — A  court  is  vested  with  full  author- 
ity to  enforce  its  judgments,  ordering  a  sale  of  property  by  enjoin- 

1.  Section  2,  ante.  5.    Artman    v.    Giles,    155    Pa.    St. 

2.  Sections  109,  110,  ante.  409,  26  Atl.  668. 

3.  Section  8,  ante.  6.  Thigpen     v.     Aldridge,    92    Ga. 

4.  Sections  7,  443,  et  seq.,  ante.  563,  17  S.  E.  860. 

916 


To  Aid  Othee  Remedies.  §  609 

ing  parties  to  the  litigation  from  interfering  with  such  sale,  and 
from  slandering  the  title  to  said  property,  and  from  interfering 
with  the  title  and  possession  of  any  purchaser  at  such  sale.7  A 
Code  provision  for  the  issuance  of  an  injunction  order  restraining 
any  person  from  "  making  or  suffering  any  transfer  or  other  dis- 
position of,  or  interference  with  the  property  of  the  judgment 
debtor,  or  the  property  or  debt  concerning  which  any  person  is 
required  to  attend  and  be  examined,  until  further  direction  in 
the  premises,"  does  not  apply  to  the  property  acquired  after  the 
issuance  of  the  order.8  But  where  plaintiifs  recovered  judgment 
in  replevin  for  the  possession  of  a  specific  chattel,  namely,  a 
diamond  ring,  and  execution  was  issued  and  returned  without 
obtaining  such  possession,  it  was  held  they  were  entitled  to  a 
mandatory  injunction  directing  defendant  to  deliver  such  prop- 
erty to  them  or  to  the  sheriff.9  Under  the  New  York  Code  of 
Procedure,  as  amended  by  the  laws  of  1888,  where  the  property 
of  a  debtor  has  been  levied  on  under  different  executions  and 
various  indemnitors  have  indemnified  the  sheriff,  a  temporary  in- 
junction may  be  granted  restraining  the  creditors  from  enforcing 
the  executions,  until  the  rights  of  the  parties  are  determined ;  for, 
in  such  a  case,  it  is  uncertain  for  what  property  each  indemnitor  is 
liable,  and,  therefore,  an  action  brought  by  the  debtor  against 
divers  indemnitors  would  be  an  inadequate  remedy.10  An  injunc- 
tion made  in  supplementary  proceedings,  forbidding  judgment 
debtors  from  transferring  or  otherwise  disposing  of  their  property, 
prohibits  them  from  making  a  general  assignment  without  prefer- 
ence for  the  benefit  of  creditors.11    Again,  where  a  judgment  crcd- 

7.  McClellan  v.  Kerby,  4  Ind.  Terr.  9.    Cain    v.    Cain,   20   N.   Y.   Supp. 
736,  76  S.  W.  295.  45,  28  Abb.  N.  C.  423. 

8.  Rainsford  v.  Temple    (Com.  PI.  10.  Newconibe  v.  Irving  Nnt.  Bank, 
1893).  22  N.  Y.  Supp.  937.    Sandford  51  Hun,  220,  4  N.  Y.  Supp.  37. 

v.  Goodwin,  20  N.  Y.   Civ.   Pro.   276,  11.  Canda  v.  Gollner,  73  Hun,  493, 

note,  is  to  the  same  effect.     In  New-  26  N.  Y.  Supp.  449,  per  Barnard,  P. 

ell  v.  Cutler,   19  Ilun,  74,  the  judg-  J.:      "It  cannot  be  claimed  but  that 

ment    debtor    had    earned    the    wages  the    defendant    violated    the    express 

before  the  order  was  served  on  him,  words    of    the    order    forbidding    the 

but  collected    them    afterwards,   and  transfer.    This  violation  was  made  by 

they   were   therefore   held   to  be  sub-  his  voluntary  act.    The  plaintiffs  were 

ject  to  the  order.  injured  by  this  act;   tbey  bad  taken 

917 


§  610  To  Aid  Other  Remedies. 

itor's  bill  is  filed,  praying  for  a  discovery  of  property  and  interests 
of  the  debtor,  which  are  unknown  to  the  complainant,  and  for  the 
appointment  of  a  receiver,  an  injunction  may  be  granted  restrain- 
ing the  debtor  from  encumbering  or  disposing  of  his  property.12 
But  tho  executors  of  a  deceased  plaintiff,  whose  judgment  remains 
unsatisfied,  are  not  entitled  to  apply  for  a  receiver  of  a  sum  due 
to  the  defendant  under  a  will,  and  for  an  injunction  to  restrain 
defendant  from  dealing  or  parting  therewith,  without  having  ap- 
plied for  an  order  that  the  proceedings  be  continued  in  their 
names.13  And  a  creditor  who,  by  prudent  compliance  with  the  law, 
has  acquired  two  securities,  will  not  be  compelled  by  injunction, 
and  to  his  own  prejudice,  to  first  resort  to  a  particular  one  of  such 
securities  in  order  to  benefit  a  creditor  who  can  reach  only  the 
other  security.14 

§  010.  Same  subject;  under  inherent  equity  powers. — A  court 
having  general  jurisdiction  in  law  and  equity  has,  for  the  purpose 
of  enforcing  obedience  to  its  judgments,  an  inherent  power  not 
derived  from  statutes,  which  it  is  not  easy  to  define;  and  while 
this  power  is  not  to  be  exercised  in  an  arbitrary  manner,  it  is  not 
exhausted  until  the  purpose  for  which  the  judgment  was  rendered 
has  been  completely  attained.  Thus,  in  New  York,  where  a  de- 
fendant in  ejectment,  pending  a  statutory  new  trial,  sought  to 
nullify  the  ejectment  against  him  by  retaking  possession  of  the 
premises,  the  Supreme  Court  ordered  him  to  restore  such  posses- 
sion, and  in  the  future  to  desist  from  any  forcible  or  other  physical 
resistance  to  the  enforcement  of  the  execution,  or  any  interference 
with  the  plaintiff's  possession.15    And  while  a  court  of  equity  will 

steps  by  which  they  could  have  had  1.3.  Norburn  v.  Norburn   (1893),  10 

the  first  lien  on  the  estate,  real  and  Reports    (Eng.),  214. 

personal,     of     the    judgment    debtor.  14.  Farmers  &.  Merchants  Bank  v. 

Code,  §  246!);   McCorkle  v.  Herrman,  Anthony,  39  Neb.  3<*3,  57  N.  W.  1029; 

117  N.  Y.  297,  22  N.  E.  948."  Sweet  v.  Redhead,  70  III.  374. 

12.    Dutton    v.    Thomas,    97    Mich.  15.  De  Lancey  v.  Piepgras,  141  N. 

93,  50  N.  W.  229.    And  see  Rankin  v.  Y.   88,   35    N.   E.    1089,   per   O'Brien, 

Rothschild,    78    Mich.    10,    43    N.    W.  J.:      "If  the  defendant  in  an  action 

1077;    Bagley    v.    Scudder,    66    Mich,  of  ejectment  may,  after  the  plaintiff 

97,  33  N.  W.  47.  has    been    put    in    possession,    return 

918 


To  Aid  Othek  Remedies. 


§610 


not,  ordinarily,  entertain  a  suit  solely  for  the  purpose  of  establish- 
ing the  title  of  a  party  to  real  estate,  or  for  the  recovery  of  its 
possession,  it  has  jurisdiction  to  interfere  by  injunction  in  order 


and  resume  the  possession  by  force, 
after  a  sliort  interval  of  tinie,  in  defi- 
ance of  the  judgment,  and  the  plain- 
tiff has  no  remedy  except  a  resort  to 
some  new  and  independent  action  or 
proceeding,  then  there  is  at  once  re- 
vealed an  obvious  defect  in  our 
methods  of  administering  justice  in 
euch  cases.  The  power  of  the  court 
to  prevent  and  punish  resistance  to 
the  execution  of  its  judgments  and 
decrees  is  not  exhausted  until  the 
purpose  for  which  the  judgment  was 
rendered  has  been  completely  at- 
tained. It  is  true  that  a  judgment 
for  the  recovery  of  the  possession  of 
real  property  is  to  be  enforced  under 
the  Code  by  execution,  but  the  ques- 
tion as  to  the  power  of  the  court  to 
interpose  in  aid  of  that  process  while 
resistance  is  made  or  threatened  to 
the  duty  imposed  upon  the  sheriff,  is 
not  necessarily  excluded. 
Whatever  may  be  the  general  rule 
with  respect  to  the  power  of  the  court 
to  aid  by  order  the  action  of  the 
sheriff  in  delivering  possession  to  the 
successful  party,  and  making  such  de- 
livery effective  and  complete,  in  such 
cases,  it  is  apparent  that  this  case 
stands  upon  peculiar  facts.  The  de- 
fendant took  advantage  of  a  favor 
granted  by  the  court  in  amending  a 
judgment  and  execution  by  forcibly 
resuming  the  possession  in  contempt 
of  the  judgment.  Had  this  purpose 
been  disclosed  when  he  was  before 
the  court  asking  the  favor,  it  might 
well  have  been  refused,  or  granted 
only  upon  the  condition  that  no  at- 
tempt would  be  made  to  disturb  the 
plaintiff's  possession,  which  had  been 


awarded  to  her  by  the  judgment  and 
secured  by  the  execution.  When  the 
real  purpose  of  the  amendments  was 
disclosed  to  the  court,  it  had  power 
to  amend  or  modify  its  former  order, 
and  insert  in  it  any  conditions  which 
might  have  been  inserted  in  the  first 
instance.  In  short,  before  granting 
the  favor  which  the  defendant  asked, 
it  had  the  power  to  incorporate  into 
it  as  a  condition,  all  the  substantial 
provisions  of  the  mandatory  order  ap- 
pealed from  by  forbidding  any  at- 
tempt to  resume  possession,  and  di- 
recting that  possession  be  restored  if 
then  resumed.  Whatever  power  the 
court  had  originally,  it  could  exercise 
and  make  effective  subsequently,  when 
informed  that  its  favor  amending  the 
judgment  and  execution  had  been 
abused  by  the  forcible  exclusion  of 
the  plaintiff  from  the  possession  in 
defiance  of  the  judgment.  The  court 
had  been  induced  to  make  an  order 
which  was  used  for  a  purpose  never 
intended,  and  which  would  have  been 
forbidden  if  that  purpose  of  the  de- 
fendant had  been  disclosed.  Under 
such  circumstances  the  court,  in  vin- 
dication of  its  own  dignity,  and  for 
the  protection  of  the  rights  of  the 
parties,  had  the  power  to  undo  all  the 
mischief  resulting  from  the  modifica- 
tion of  the  judgment  and  execution, 
which  it  had  been  induced  to  make, 
and  the  order  appealed  from  may  be 
regarded  as  made  for  that  purpose, 
and  under  this  general  inherent 
power.  It  cannot  be  doubted  that 
when  a  party  obtains  an  undue  ad- 
vantage by  using  an  order  of  the 
court  for  a  purpose  contrary  to  its 


919 


§  Oil  To  Aid  Other  Remedies. 

to  carry  Its  own  decrees  into  effect  and  to  avoid  the  re-litigation  of 
questions  once  settled  between  the  same  parties.18 

§611.  In  aid  of  receivers. — The  incidental  usefulness  of  an 
injunction  is  apparent  also  from  the  fact  that  the  appointment  of 
receivers  of  a  corporation,  in  the  absence  of  an  injunction  restrain- 
ing the  officers  of  such  corporation  from  defending  a  pending 
action  against  it,  does  not  deprive  such  officers  of  the  right  to 
continue  the  defense  thereof;  and  such  receivers  have  no  stand- 
ing unless  made  parties  to  the  action,  to  move  to  set  aside  the 
answer  interposed  by  such  officers  and  the  judgment  i  ntered 
thereon,  and  for  leave  to  serve  an  answer  on  their  own  behalf.17 
Where  a  suit  is  pending  by  a  judgment  creditor  of  an  insolvent 
domestic  corporation  to  set  aside  mortgages  of  its  assets,  and 
another  suit  is  brought  for  the  same  purpose  by  the  receiver  of  such 
corporation,  an  injunction  will  bo  granted  upon  the  application 
of  such  receiver  to  stay  the  proceedings  of  the  judgment  creditor, 
in  order  to  prevent  a  multiplicity  of  suits  for  the  determination 
of  the  same  matters;  the  receiver  representing  the  interests  of  all 
creditors  of  the  insolvent.18  After  a  creditor  of  an  insolvent  firm 
of  wholesale  clothiers  had  attached  their  entire  stock,  other  per- 
sons claiming  to  be  creditors  for  goods  sold  assumed  to  rescind 
the  sales,  as  having  been  induced  by  fraud,   and   replevied  the 

spirit  and  intention,  and  which  could  iliary  to  the  enforcement  of  the  judg- 

and  would  have  been  guarded  against  ment  lien. 

had    the   unlawful    purpose   been   dis-  16.  Root  v.  Wool  worth,  150  U.  S. 

closed  when  the  order  was  made,  the  401,     14     S.     Ct.     136,     37     L.     Ed. 

court   baa    power   to   deprive    him   of  1123;      Kershaw     v.     Thompson,     4 

this    advantage     resulting     from    an  Johns.      Ch.      (N.     Y.)      609,     612; 

abuse  of  the  order,  by  modifying  or  Schenck  v.  Conover,  13  N.  J.  Eq.  220; 

amending  it,  or  granting  a  new  order  BufTuin's  Case,  13  N.  H.  14;  Davis  v. 

to  correct  the  abuse.     It  seems  to  me  Bluck,  6  Beav.  393;  Shepherd  v.  Tow« 

that  the  power  of  the  court  to  make  good,  Turn  &  Buss,  379. 
the  order  in  question  can  be  upheld  17.  Farmers  Loan  &  Trust  Co.  v. 

upon   this   principle,   and   having  the  Hoffman   House,   7   Misc.   358,  27   N. 

power,  the  manner  of  its  exercise  was  Y.    Supp.    634,    following    Tracy    v. 

in  its  discretion."     And  see  Noyes  v.  Selma  Bank,  37  N.  Y.  523. 
Vickers,  39  W.  Va.  30,  19  S.  E.  429,  18.  Brower    v.    Baucus,    60    Hun, 

where  the  injunction  was  merely  aux-  579,  14  N.  Y.  Supp.  402. 

920 


To  Aid  Other  Remedies.  §§  612,  613 

goods,  which  they  took  from  the  possession  of  the  sheriff.  There 
were  more  than  fifty  of  these  actions,  some  claiming  cloth,  some 
linin-s,  and  others  trimmings;  so  that  entire  garments  were  re- 
plevied by  persons  who  had  merely  furnished  the  buttons  thereon, 
and  others  were  sought  to  be  taken  by  several  different  creditors. 
The  fraud  complained  of  consisted  of  false  representations  as  to 
the  solvency  of  the  firm,  made  to  the  different  creditors  as  part 
of  the  general  purpose  to  defraud.  It  was  held  that  the  attaching 
creditor  might  maintain  a  suit  to  restrain  further  proceedings 
in  replevin,  to  have  a  receiver  appointed,  and  to  compel  the  liti- 
gation of  all  the  adverse  claims  in  one  suit.19 

§  612.  To  aid  writ  of  possession. — After  judgment  for  posses- 
sion in  ejectment,  plaintiff  may  enjoin  defendants  from  unlawfully 
interfering  with  the  execution  of  the  writ  of  possession.20 

§  613.  In  aid  of  assignments  for  benefit  of  creditors.— Where 

the  assignee  for  the  benefit  of  creditors  refuses,  on  the  request  of 
a  general  creditor,  to  'bring  an  action  to  set  aside  a  judgment 
fraudulently  confessed  by  the  debtor,  the  creditor,  having  brought 
suit  for  such  purpose,  may  have  an  injunction  pendente  lite 
against  the  payment  over  of  the  proceeds  of  the  execution,  such 
an  action  being  in  aid  of  the  assignment,  and  to  protect  the  trust 
fund.21 

19    National  Park  Bank  v.  God-      settled    in    the    former    action.      It 

d    131  N   Y  494   30  N  E.  506,  fol-      would  avail  the  appellants  nothing  if 

lowing  Board,  'etc.,  'v.  Deyoe,  77  N.  Y.      it  were  conceded  that  there  was  some 
lowing  ,  defect  .n  the  noUce  gJven  jn  the  eject. 

2120  Ilawkins  v.  McDougal,  126  Ind.  ment  proceedings  or  some  error  in  the 

MQ    25   N    E     820,   per   Elliott,  J.:  rulings  of  the  court  in   that  action, 

"The   facts   appear    in    the    opinion  for  such   defects  and   errors   are   not 

filtd  in  the  case  of  Hawkins  v.  State,  availing      in      a      collateral      attack. 

^  Tnd    57^25  N.  E.  818.     As  the  Sauer  v.  Twining,  81  Ind.  306;  Krug 

!nnlicants   were   unlawfully    interfer-  v.   Davis,   85   Ind.   309;    Pickering  v. 

•'    wttt M  execution  of  a  writ  by  State,  106   Ind.    228,    6    N.  E.  611; 

2  Ih'eriO l  the  injury  of  the  aP;  Kleyla  .    Haskett,   112  Ind.  5,5,   14 

rt  W££^££  "SL-v,  C0V  "  Y' 

L  as  tothe  right  to  possession  was     Supp.     161.       And    see    Preston    v. 


921 


§014 


To  Aid  Otheb  Rxmxdxes. 


$  G14.   In  aid  of  relief  against  usury. — Where  in  an  action  to 
redeem  from  a  mortgage  under  which  the  mortgagee  has  advertised 

the  Land  f<»rsale  the  complaint  alleges  that  the  mortgage  is  QgurioiU 
and  was  made  payahle  in  another  State  to  avoid  the  usury  laws  of 
the  Stat.-  where  thr  land  is  situated,  there  is  a  "serious  issue" 
between  tlx-  parties  entitling  plaintiff  to  an  order  restraining  the 
sale  of  the  property  till  the  hearing." 


Spaulding,  120  III.  231.  In  an  action 
by  a  general  crcilitor  to  sot  aside 
judgments  against  the  debtor,  where 
the  assignee  for  the  benefit  of  credi- 
tors, denying  the  allegation  that  he 
refused  to  bring  an  action  to  set  aside 
these  judgments,  shows  that  the   pro- 

c Is  of   the  execution   sales  on   these 

judgments  are  on  deposit  with  a  trust 
company,  subject  to  the  order  of  the 
judgment  creditors  and  the  assignee, 
and  that  he  lias  commenced  an  action 
to  set  these  judgments  aside,  an  in- 
junction will  not  lie  to  restrain  the 
sheriff  from  paying  over  the  proceeds. 
Third  Nat.  Hank  v.  Clark,  1  X  V. 
Supp.  207.  A9  to  the  general  right  of 
a  beneficiary  to  act  in  his  own  name 
when  a  trustee  refuses  to  protect  his 
Interests,  see  VVeetjen  v.  Vibbard,  5 
Hun,  2G5;  Western  R.  Co.  v.  Nolan, 
48  N.  Y.  513.    And  as  to  the  right  of 


judgment  creditors  to  compel  the  ex- 
ecution of  his  trust  by  an  assignee  for 
their  benefit,  see  ('rouse  v.  Krothing- 
ham,  !>7  N.   V.   113. 

22.  Meronej  v.  Atlanta,  etc.,  Loan 
Assoe'n.  112  N.  C.  8-12,  17  8.  E.  837, 
per  Curium:  "If  it  is  true,  as  the 
plaintiff  alleges,  that  the  contract 
set  out  in  the  complaint  was  made 
payable  in  Georgia  to  avoid  tbe  usury 

laws  of  this  State,  that  contract  will 
be  adjudged  to  l>e  usurious,  what- 
ever may  be  the  law  of  that  State. 
There  is,  therefore,  a  '  serious  issue  ' 
between  the  partiea  which,  under  the 

rule  established  by  Whittaker  v.  Hill, 
M  X  C.  2,  1  S.  E.  63!);  Harrison  v. 
Bray,  92  N.  C.  488,  and  Davis  v.  Las- 
siter,  112  N.  C.  128,  10  S.  E.  809, 
entitles  the  plaintiff  to  have  the  re- 
straining order  continued  in  force  to 
the  bearing." 


922 


Against  Judgments  ;  General  Considerations. 

CHAPTER  XXI. 

Against  Judgments  ;  General  Considerations. 

Section  615.  General  rule. 

616.  Amount  due  must  be  paid  or  tendered. 

617.  No  injunction  where  remedy  at  law — Appeal — Certiorari. 
617a.  Same  subject  continued. 

618.  Judgment  not  enjoined  if  reviewable. 

619.  Set-offs. 

620.  Cases  of  set-off  continued. 

621.  Enjoining  judgment  founded  on  perjury. 

622.  Enjoining  judgment  on  bond  given  to  suppress  forgery. 

623.  Execution  for  costs  and  interest  thereon. 

624.  Restraining  levy  to  extort  costs. 

625.  Enjoining  execution  where  judgment  has  been  paid. 

626.  Same  subject. 

627.  Same  subject — Constructive  payment. 

628.  Enjoining  judgment  for  alimony. 

629.  Enjoining  judgment  for  usury. 

630.  Same  subject — Legal  interest  to  be  paid  or  tendered. 
,631.  Enjoining  judgment  when  summons  not  served. 
632.  Same  subject. 

633.Same  subject  continued. 

634.  Enjoining  judgment  if  summons  served  on  Sunday. 

635.  Judgment  without  notice  of  hearing— Defective  summons. 

636.  Enjoining  judgment  for  irregularities. 

637.  Enjoining  void  judgments. 

638.  Judgments  void  for  want  of  jurisdiction. 

639.  Default  judgments. 

640.  Default  through  neglect. 

641.  Same  subject — In  Mississippi  and  Texas. 

642.  Where  default  judgment  only  irregular— Where  void. 

643.  Enjoining  confessed  judgments. 

644.  Same  subject. 

645.  Chancery  jurisdiction  over  judgments  at  law. 

646.  Same   subjects — In  other  States. 

647.  Same  subject  continued. 

648.  Statutory   jurisdiction — California,  etc. 

649.  Same  subject — Indiana,  Kentucky,  etc. 

650.  Jurisdiction   to  enjoin   federal   judgments. 

651.  Enjoining  process  as  between  State  and  Federal  courts. 

652.  Parties. 

653.  Parties  continued. 

923 


§015       Against  Judgments;  Gexekal  Considerations 

Section  654.  Defect  of  parties — Effect  of. 

655.  Must   be   judgment  or   lien   creditors. 

656.  Same  subject — Pieferred  liens. 

657.  Enjoining  judgment   barred   by   laches. 

658.  Sureties'    suit   to   enjoin   judgment. 

659.  Same  subject. 

660.  Enjoining   arbitrators'   awards. 

601.  When  bankrupt  may  enjoin  execution. 

662.  To  prevent  multiplicity  of  suits. 

663.  Preliminary    injunctions — Requisites. 

664.  Refunding  bond. 

665.  Requisites  of  bill  to  enjoin  judgment,  etc. — Demurrer. 

666.  Multifariousness. 

667.  Staying  injunction   judgment  by  appeal. 

668.  Release  of  errors  by  enjoining  judgment. 

669.  Effect  of  enjoining  all   proceedings. 

670.  Effect  of  enjoining  execution  on  Statute  of  Limitations. 

671.  Miscellaneous  cases. 

Section  615.  General  rule. — In  1813,  Chief  Justice  Marshall 
thus  laid  down  a  general  rule  by  which  courts  of  equity  are  guided 
when  asked  to  enjoin  the  enforcement  of  judgments  of  courts  of 
law:  "Without  attempting  to  draw  any  precise  line  to  which 
courts  of  equity  will  advance,  and  which  they  cannot  pass,  in  re- 
straining parties  from  availing  themselves  of  judgments  obtained 
at  law,  it  may  safely  be  said  that  any  fact  which  clearly  proves  it 
to  be  against  conscience  to  execute  a  judgment,  and  of  which  the 
injured  party  could  not  have  availed  himself  in  a  court  of  law,  or 
of  which  he  might  have  availed  himself  at  law,  but  was  prevented 
by  fraud  or  accident,  unmixed  with  any  fault  or  negligence  in 
himself  or  his  agents,  will  justify  an  application  to  a  court  of 
chancery.  On  the  other  hand,  it  may  with  equal  safety  be  laid 
down  as  a  general  rule  that  a  defense  cannot  be  set  up  in  equity 
which  has  been  fully  and  fairly  tried  at  law,  although  it  may  be 
the  opinion  of  that  court  that  the  defense  ought  to  have  oeen  sus- 
tained at  law."  !    So  while  it  is  true  that  a  judgment  cannot  be  col- 

1.   Marine  Ins.  Co.   v.   Hodgson,   7  valued  policy  of  marine  insurance  by 

Cranch    (U.   S.),   332,  3   L.  Ed.   362.  an  overvaluation  of  the  ship,  and  that 

In  this  case  a  bill  for  injunctive  re-  the   complainant  had   been   prevented 

lief   alleging  that   a   fraud   had   been  from  making  his  defense  at  law,  was 

practiced  upon  the  underwriters  in  a  dismissed  by  the  decree  and  the  de- 

924 


Against  Judgments;  Genebal  Considerations.       §  616 

laterally  impeached  in  an  action  at  law,  yet  a  judgment  may  be 
collaterally  attacked  and  enjoined  in  a  suit  in  equity,  where  any 
fact  exists  which  clearly  proves  it  to  be  against  conscience  to  exe- 
cute the  judgment,  and  of  which  the  injured  party  could  not  have 
availed  himself  in  a  court  of  law,  or  of  which  he  might  have 
availed  himself  at  law,  but  was  prevented  by  fraud  or  accident, 
unmixed  with  any  fault  or  negligence  in  himself  or  his  agents. 

r  616  Amount  due  must  be  paid  or  tendered.— It  would  be 
opposed  to  fundamental  principles  of  equity  to  grant  injunctive 
relief  to  a  judgment  debtor  unless  he  is  willing  to  do  equity,  by 
paying  or  offering  to  pay  such  part  of  the  judgment  as  is  really 
due  3    Thus  an  administrator  will  not  be  enjoined  from  collecting 


cree  affirmed  by  the  Federal  Supreme 
Court.    The  rule  laid  down  in  the  text 
was  held  to  be  the  law  prevailing  in 
the  District  of  Columbia,  not  by  rea- 
son of  any  local  peculiarity,  but  be- 
cause  it  was  a   general   principle   of 
equity     jurisprudence.       It     was     re- 
peated in  Hendrickson  v.  Hinckley,  17 
How.  443,   15  L.  Ed.  123,  where  the 
rule  was  condensed    by    Mr.    Justice 
Curtis  into  the  following  statement: 
"  A  court  of  equity  does  not  interfere 
with    a    judgment  at  law   unless  the 
complainant  has  an  equitable  defense, 
of  which  he  could  not  avail  himself 
at  law,  because  it  did  not  amount  to 
a  legal  defense,  or  had  a  good  defense 
at  law,  which  he  was  prevented  from 
availing  himself  of  by  fraud  or  acci- 
dent, unmixed  with  negligence  of  him- 
self or  his  agents."    See,  also,  Creath 
v.  Sims,  5  How.  192,  12  L.  Ed.  Ill; 
Walker  v.  Robbins,  14  How.  584,  14 
L.  Ed.  552;  and  Brown  v.  County  of 
Buena  Vista,  95  U.  S.  157,  24  L.  Ed. 
422;   Twigg  v.  Hopkins,  85  Md.  301, 
37  Atl.  24.     This  is  the  doctrine  re- 
cognized and  applied  by  the  Supreme 
Court  of  Errors  of  Connecticut  in  the 


case  of  Pearce  v.  Olney,  20  Conn.  544. 
That  was  a  bill  in  equity  to  restrain 
the  collection   of   a    judgment    recov- 
ered in  New  York  upon  the  ground 
that  the  complainant  had  a  good  de- 
fense at  law  to  the  action  which  he 
was   prevented   from   making   by    the 
fraud  of  the  defendant.    It  was  there 
said  by  the  court:      "It  is  well  set- 
tled   that    this    jurisdiction    will    be 
exercised  whenever  a  party,  having  a 
good  defense  to  an  action  at  law,  has 
had  no  opportunity  to  make  it,  or  has 
been   prevented   by   the  fraud   or   im- 
proper management  of  the  other  party 
from  making  it,  and  by  reason  thereof 
a  judgment  has  been  obtained  which 
it  is  against  conscience   to   enforce." 
Such    is   the   general   current   of    au- 
thority touching  the  power  of  a  court 
of  equity  to  enjoin  judgments  at  law, 
being  in  full  harmony  with  the  prin- 
ciples  announced   in   Walker   v.  Hel- 
ler, 90  Ind.  198. 

2.  Hogg  v.  Link,  90  Tnd.  34G;  Wal- 
ker v.  Heller,  90  Tnd.  198;  Harnian  v. 
Moore,  112  Ind.  221,  13  N.  E.  718. 

3.  Youge  v.  Sheppard,  44  Ala.  315; 
Russell  v.  Cleary,  105  Ind.  502,  5  N. 


925 


§616       Against  Judgments;  Geneeal  Considebatxohb. 


an  execution  against  a  debtor  of  the  estate,  on  the  ground  that  two 
of  the  distributees  are  debtors  of  the  latter  by  judgment,  without 
first  tendering  the  administrator  what  is  due  on  the  execution, 
exclusive  of  the  interest  of  those  two  distributees  in  the  fund  to 
be  raised  by  the  execution,  it  appearing  that  there  are  several  other 
distributees  against  whose  interests  in  this  fund  there  is  no  claim 
by  the  petitioner.4  If  complainant  is  indebted  to  the  full  amount 
of  the  judgment,  he  will  not  be  allowed  to  enjoin  it  without  offer- 
ing to  pay  it,5  or  without  tendering  such  balance  as  he  admits  to 
remain  unpaid.6  But  an  execution  of  a  judgment  may  be  enjoined 
on  the  strength  of  a  tender  which  complainant  in  good  faith  re- 
peatedly attempted  to  make,  but  was  prevented  from  making  by 
the  evasion  of  the  judgment  plaintiff  or  his  agent.7     In  Alabama 


E.  414;  Baragree  v.  Cronkhite,  33 
Ind.  192;  Stroeh  v.  Doggett  Dry 
Goods  Co.,  65  Mo.  App.  103;  Herwick 
v.  Kohen  Barber  S.  Co.,  01  Mo.  App. 
454. 

4.  Gibson  v.  Carreker,  92  Ja.  801, 
19  S.  E.  42. 

5.  Overton  v.  Stevens,  8  Mo.  622. 
Complainant,  at  a  sale  of  bis  father's 
estate,  bought  two  slaves,  giving  his 
bond  for  $1,200,  of  which  amount  de- 
fendant was  immediately  entitled  to 
$370.  A  year  later  complainant  sold 
defendant  some  land  for  $800,  one- 
half  cash.  Several  years  later  com- 
plainant filed  a  bill  to  enforce  a  lien 
for  the  unpaid  balance,  which  be 
claimed  amounted  to  $635.  Defend- 
ant answered  that  be  only  owed  about 
$78,  and  filed  a  statement  showing 
numerous  small  credits,  but  contain- 
ing no  mention  of  the  $370,  nor  did 
his  deposition  mention  it.  After  a 
decree  in  favor  of  complainant,  de- 
fendant obtained  an  injunction  en- 
joining its  execution,  on  the  ground 
that  he  had  since  discovered  that  the 
$370  was  to  be  credited  on  the  balance 
of   purchase    money,   which    had    not 


been  done.  There  was  strong  evi- 
dence that  he  had  been  paid  this  $.370 
before  the  land  contract  was  made. 
Held,  that  the  injunction  should  be 
dissolved.  Akers  v.  Akers,  83  Va. 
633,  8  S.  E.  260. 

6.  Flickinger  v.  Hull,  5  Gill  (Md.), 
60.  The  judgment  should  not  be  en- 
joined to  a  greater  extent  than  it  is 
shown  to  be  inequitable.  Duncan  v. 
Morrison,  Breese,  113.  For  the  in- 
junction may  be  dissolved  as  to  a 
part  and  continued  as  to  the  re- 
mainder of  the  judgment.  Lyles  v. 
Hatton,  6  Gill  &  J.  (Md.)  122.  If 
a  part  only  is  enjoined  the  remain- 
der is  not  affected  by  the  injunction, 
and  draws  interest  from  the  date  of 
the  judgment.  Copeland  v.  Reese, 
Wright  (Ohio),  728.  Where,  in  a 
suit  to  restrain  the  collection  of  a 
judgment,  it  appears  that  complain- 
ant is  indebted  to  defendant  on  the 
judgment,  but  not  to  the  full 
amount  of  the  judgment,  he  will  be 
decreed  to  pay  what  is  due,  and  an 
injunction  granted  as  to  the  residue. 
Small  v.  Collins,  5  Del.  Ch.  234. 
7.  There  was  no  error  in  holding 


926 


Against  Judgments;  General  Considerations.       §617 


it  has  been  decided  that  where  a  bill  to  restrain  the  enforcement 
of  a  judgment  admits  that  a  certain  amount  of  it  is  due,  such 
amount  should  be  paid  into  court.  A  simple  offer  to  pay  is  insuf- 
ficient.8 

§  617.  No  injunction  where  remedy  at  law;  appeal;  certiorari. 

The  general  rule  that  an  injunction  will  not  be  granted  where 

there  is  an  adequate  remedy  at  law  applies  in  the  case  of  judg- 
ments,9 as  does  also  the  limitation  on  this  rule  that  the  remedy  at 


that  a  petition  praying  an  injunction 
against  the  further  proceeding  of  an 
execution    was    not    demurrable    for 
want  of  equity,  or  in  granting  a  tem- 
porary injunction  upon  the  facts  al- 
leged in  such  petition,  which  were  as 
follows:      That    petitioner   had   been 
the  claimant  in  a  claim  case  in  which 
a    consent    judgment    had    been    ren- 
dered,  finding   the   property   subject, 
but  providing    that,    upon    the  pay- 
ment  of   a   specified   sum,   less  than 
the   amount  of   the   execution,   by  a 
day  named,  the  judgment  should  be 
satisfied  in  full,  otherwise  to  remain 
of   full    force,   and   the  execution   to 
proceed;    that  time  was  not  of   the 
essence  of  the  agreement;   that  peti- 
tioner, by  her  husband  as  her  agent, 
tendered    to   the    attorney    of    record 
for  plaintiffs  in  execution,  they  being 
non-residents,  a  portion  of  the  money, 
and  offered  to  pay  the  balance   the 
next  day,  all  of  which  was  before  the 
day    fixed   for    the    payment   by    the 
judgment,  but  said  attorney  refused 
to   receive   the   money   tendered,   and 
stated  he  would  not  then  or  the  next 
day   receive   the   whole   or  any   part 
of  said  sum,  and  referred  petitioner's 
agent  to  McK.,  a  nonresident  of  the 
county,  who  in  some  way  controlled 
and     directed     the     execution,     but 
whether  as  owner  of  the  execution  or 
as  agent  of  plaintiffs  was  unknown 


to  petitioner;  that  said  attorney 
gave  no  intimation  that  the  time  of 
making  payment  would  be  regarded 
as  important,  and  had  not  previously 
informed  petitioner  or  her  agent  that 
McK.  was  authorized  to  receive  the 
money;  that,  as  soon  as  so  informed, 
said  agent  made  repeated  efforts  to 
find  and  pay  him;  that  he  did  not 
attend  the  court  where  it  was  under- 
stood the  money  was  to  be  paid,  and, 
finally,  that  the  money  was  tendered 
him,  but  this  was  shortly  after  the 
day  for  payment  fixed  in  the  judg- 
ment, and  petitioner  now  tenders  and 
is  ready  to  pay  the  same.  Cooper  v. 
Whaley,  90  Ga.  285,  15  S.  E.  824. 

8.  Roebling  Sons  Co.  v.  Stevens 
Electric  Light  Co.,  03  Ala.  39,  9  So. 
369. 

9.  Hughes  v.  Melville,  CO  111.  App. 
419;  Missouri,  K.  &  E.  K.  Co.  v. 
Hoereth,  144  Mo.  136,  45  S.  VV.  1085; 
Mayer  v.  Nelson,  54  Neb.  434,  74  N. 
W.  841;  Wright  v.  Smith,  13  App. 
Div.  (N.  Y.)  53C,  43  N.  Y.  Supp. 
728. 

Enjoining  nse  of  final  order  as 
evidence.— A  suit  in  equity  to  have 
a  final  order  in  supplementary  pro- 
ceedings declared  void  and  to  enjoin 
its  use  as  evidence  to  establish  the 
relation  of  landlord  and  tenant  in 
another  action  will  not  lie  when  said 
order   is   void   for   jurisdictional   de- 


927 


§617       Against  Judgments;  General  Considerations. 


law  must  be  as  complete  as  the  remedy  in  equity.10  So  in  a  recent 
case  in  New  York  it  is  decided  that  equity  has  jurisdiction  to 
enjoin  the  enforcement  in  whole  or  in  part  of  judgments,  orders 
or  decrees,  but  that  this  jurisdiction  will  be  exercised  only  in 
cases  of  necessity  and  where  there  is  no  adequate  remedy  at  law.11 
And  it  is  a  rule  that  a  court  of  equity  will  not  restrain  the  enforce- 
ment of  a  judgment  where  the  party  has  a  complete  remedy  by 
appeal,12  or  by  certiorari, 12a  or  by  a  motion  to  set  the  judgment 
aside.13  And  an  injunction  against  a  judgment  will  not  be  granted 
in  favor  of  a  party  who  through  his  want  of  diligence  has  lost  his 
right  of  appeal.14  But  it  has  been  held  that  one  who  has  lost  his 
right  of  appeal  through  no  fault  of  his,  as  where  the  trial  judge 
died  before  the  bill  of  exceptions  had  been  signed,  may  be  entitled 
to  an  injunction.15 


fects  as  advantage  may  be  taken  of 
such  defects  when  the  order  is  offered 
in  evidence.  Matthews  v.  Carman, 
122  App.  Div.  (N.  Y.)  582,  107  N. 
Y.  Supp.  G94. 

10.  Bankers'  L.  I.  Co.  v.  Rob- 
bins,  53  Neb.  44,  73  N.  VV.  269. 

11.  Matthews  v.  Carman,  122  App. 
Div.  (N.  Y.)  582,  107  N.  Y.  Supp. 
694. 

12.  Florida. — Kahn  v.  Kahn,  15 
Fla.  400. 

Illinois. — Lasher  v.  Annunziata, 
119  111.  653;  Garden  City,  W.  &  S. 
Co.  v.  Kause,  67  111.  App.  108. 

Iowa. — Strieker  v.  Field,  9  Iowa, 
366. 

Kansas.— Edwards  v.  Cary,  20 
Kan.  414. 

Louisiana. — Dupre  v.  Anderson,  45 
La.  Ann.  1134,  13  So.  743. 

Maryland. — Chappell  Chemical  & 
F.  Co.,  85  Md.  681,  36  Atl.  260. 

Mississippi. — Wyman  v.  Hardwick, 
52  Mo.  App.  621. 

Pennsyhmnia. — Rockwell  v.  Tup- 
per,  7  Pa.  Super.  Ct.  174. 

Texas.— Bills  v.  Scott.  49  Tex.  430; 
McHugh  v.  Sparks,  15  Tex.  Civ.  A. 
57,   38   S.   W.   537. 


Washington. — Bowman  v.  Mc- 
Gregor, 6  Wash.  118,  32  Pac.  1059. 

12a.  Lasher  v.  Annunziata,  119  111. 
App.  653;  Rockwell  v.  Tupper.  7  Pa. 
Super.  Ct.  174;  Scales  v.  Gulf,  C.  & 
S.  F.  R.  Co.  (Tex.  Civ.  A.),  35  S.  W. 
205. 

13.  Smith  v.  Hall,  71  Conn.  427, 
42  Atl.  80. 

14.  In  a  suit  to  enjoin  a  judg- 
ment the  bill  alleged  that,  by  reason 
of  the  resignation  of  the  justice  by 
whom  it  was  rendered,  plaintiff  was 
prevented  from  perfecting  his  appeal; 
but  it  appeared  that,  of  the  thirty 
days  allowed  within  which  to  per- 
form the  appeal,  eighteen  were  al- 
lowed to  elapse  before  any  steps  were 
taken  to  do  so.  Held,  that  this  alone 
was  not  sufficient  to  confer  jurisdic- 
tion on  a  court  of  equity  to  interfere 
with  the  judgment.  Galbraith  v.  Bar- 
nard, 21  Or.  67,  26  Pac.  1110.  A 
judgment  will  not  be  enjoined  where 
a  direct  proceeding  to  reverse  it 
should  have  been  instituted.  Gould  ▼. 
Loughran,  19  Neb.  392. 

15.  Little  Rock  &  S.  F.  R.  Co.  v. 
Wells,  61  Ark.  354,  33  S.  W.  208,  30 
L.  R.  A.  560.      But  compare  Church 


928 


Against  Judgments;  General  Considerations.     §§  617a,  618 

§  617a.  Same  subject  continued. — Where  judgment  is  rendered 
for  defendant  in  replevin  for  a  return  of  the  property  or  the  value 
thereof,  the  facts  that  the  property  belonged  to  a  firm  of  which 
plaintiff  was  a  partner,  and  that  plaintiff  cannot  return  the  prop- 
erty because  he  has  appropriated  it  to  the  use  of  the  firm,  furnish 
no  ground  for  enjoining  the  enforcement  of  the  judgment;  and 
the  facts  that  defendant  had  only  a  special  property  in  the  goods 
taken  from  him,  and  that  the  amount  thereof  was  not  shown  in  the 
replevin  suit,  do  not  justify  granting  the  injunction,  since  plain- 
tiff's remedy  was  by  appeal.16  Also,  it  would  be  no  ground  for 
enjoining  collection  of  a  judgment  that  the  court  refused  to  allow 
the  defendant  to  show  that  the  instrument  sued  on  was  obtained 
by  fraud,  since  such  ruling  would  be  mere  error,  to  be  remedied  by 
application  for  new  trial  or  by  appeal.17  Nor  is  it  any  ground  for 
-an  injunction  that  the  evidence  was  not  sufficient  to  support  the 
judgment.18  And  in  an  action  to  restrain  the  levy  of  an  execution 
upon  a  justice's  judgment,  a  complaint  which  alleges  that  an 
appeal  bond  was  tendered  to  the  justice,  which  he  refused  to  ap- 
prove, and  which  does  not  allege  that  there  is  any  valid  defense 
to  the  cause  of  action  sued  on,  is  insufficient,  since  the  justice's 
failure  to  approve  the  bond  did  not  prevent  the  appellant  from  per- 
fecting his  appeal,  either  by  having  the  justice  compelled  by  man- 
date to  approve  the  bond,  or  by  obtaining  an  appeal  on  application 
to  the  Circuit  Court,  as  allowed  by  statute.19  Where  the  proper 
remedy  for  a  debtor  against  a  judgment  is  by  appeal,  the  inability 
to  furnish  the  required  appeal  bond  is  not  a  sufficient  ground  for 
relief  by  injunction.20 

§  618.  Judgment  not  enjoined  if  reviewable. — A  statutory  pro- 
vision which  authorizes  the  review  of  a  judgment  for  error  of  law 

v.  Gallic  (Ark.  1905),  88  S.  W.  307.  v.    Dinkgrave,     25     La.     Ann.    538; 

16.  Bowman  v.  McGregor,  6  Wash.  Smith  Co.  v.  Holmes  County  Bank 
118,  32  Pac.  1059.  (Miss.),    18    So.    847;    Robinson    v. 

17.  Edmanson  v.  Best,  6  C.  C.  A.  Sanders,  33  Tex.  774. 

471,  57  Fed.  531.  19.  Boyd  v.  Weaver,  134  Ind.  266, 

18.  Hammer's  Adm'r  v.  Rochester,       33  N.  E.  1027. 

2  J.  J.  Marsh.  144;   Howell  v.  New  20.  Dupre    v.    Anderson,    45    La. 

Orleans,  28  La.  Ann.  681;  Naughton       Ann.  82,  13  So.  743. 

929 
59 


§618       Against  Judgments  ;  General  Considerations. 

appearing  in  the  proceedings  and  judgment,  within  one  year  after 
its  rendition,  or,  within  three  years,  for  material  new  matter  dis- 
covered since  the  rendition  thereof,  extends  the  right  to  review  to 
judgments  at  law  as  well  as  to  decrees  in  equity;  and  hence,  after 
the  adoption  of  such  a  statute,  a  court  of  equity  cannot  enjoin  the 
enforcement  of  a  judgment  at  law  where  such  right  of  review 
exists.  Thus  where,  pending  an  appeal  from  a  judgment  estab- 
lishing his  title  to  land,  plaintiff  recovered  another  judgment  for 
the  possession  of  the  land,  based  solely  on  the  title  established  by 
the  appealed  judgment,  it  was  held,  that  the  reversal  of  the 
appealed  judgment  within  one  year  from  the  rendition  of  the 
judgment  for  the  possession  was  no  ground  for  enjoining  the 
enforcement  of  the  latter  judgment,  since  defendant  had  an  ade- 
quate remedy  by  a  review  of  that  judgment,  under  the  statutory 
provision  above  cited,  though  prior  to  the  enactment  of  such  statute 
an  injunction  would  have  been  the  proper  remedy.  And  a  pur- 
chaser of  the  land  from  the  heirs  of  defendant  after  such  reversal 
was  held  to  have  the  same  right  to  a  review  of  the  judgment  for  pos- 
session as  have  the  heirs,  under  the  express  provision  of  the 
same  statute;  and,  having  such  right,  the  purchaser  cannot  resort 
to  equity  for  an  injunction  against  the  judgment.21    Under  a  Code 

21.  Ross  v.  Banta  (Ind.),  34  N.  E.  Ream,  her  husband,  as  her  sole  heir 
865,  per  McCabe,  C.  J.:  "Another  at  law,  who  conveyed  to  appellant 
well-established  principle  of  equity  Ross.  February  27,  1890,  and  tli.it  the 
is  that  courts  of  equity  will  not  lend  judgment  for  a  resale  of  the  lota, 
their  aid  by  injunction  against  judg-  which  was  the  sole  producing  cause 
ments.  or  for  any  injunctive  relief,  and  foundation  of  the  Pulaski  Circuit 
where  the  party  invoking  such  aid  Court  judgment,  was  reversed  by  this 
has  a  plain  and  adequate  remedy  at  court  on  March  14,  1889.  When  Mar- 
law.  Thatcher  v.  Humble,  67  Ind.  garet  Beam  died,  she  had  a  right  to 
444;  Bishop  v.  Moorman,  98  Ind.  1;  maintain  a  complaint  to  review  the 
Baragree  v.  Cronkhite,  33  Ind.  192;  Pulaski  Circuit  Court  judgment  on 
Schwab  v.  City  of  Madison,  49  Ind.  account  of  the  reversal  of  the  judg- 
329;  Sims  v.  City  of  Frankfort,  79  ment  for  a  resale  if  that  reversal 
Ind.  446;  Allen  v.  Winstandly,  135  had  taken  place  before  her  death; 
Ind.  105,  34  N.  E.  699  (at  this  term).  and  that  right  would  have  descended 
Did  the  appellant  Ross  have  an  ade-  to  her  heir,  Andrew  J.  Ream,  cross 
quate  remedy  at  law?  Margaret  complainant's  grantor,  under  the 
Ream  died,  as  cross  complainant  statute,  as  we  shall  hereinafter  see. 
avers,   in    1889,    leaving    Andrew    J.  Whether  she  died  before  or  after  the 

930 


Against  Judgments;  General  Considerations.       §619 


provision  that  judgments  in  ordinary  proceedings  shall  not  be 
annulled  or  modified  by  equitable  proceedings  except  for  a  defense 
arising  or  discovered  since  the  judgment  was  rendered,  equity  can- 
not relieve  against  a  final  judgment  which  the  clerk  has  improperly 
entered  against  plaintiff,  instead  of  a  dismissal  without  prejudice, 
where  the  judgment  has  been  successfully  pleaded  in  bar  to  a  second 
action  for  the  same  matter,  though  complainant  was  ignorant  of 
the  error  until  the  trial  of  the  second  action.22  In  Louisiana  it  is 
decided,  that  an  injunction  in  favor  of  the  debtor  to  restrain  the 
execution  of  an  order  of  seizure  and  sale,  lies  only  in  cases  pre- 
scribed by  the  Code  of  Practice,  and  the  legal  representative  of  the 
deceased  debtor  has  no  greater  rights  than  his.  Insufficiency  of 
the  authentic  evidence  on  which  the  order  issued,  is  no  ground 
for  such  an  injunction,  the  remedy  being  by  appeal.23 

§  619.  Set-offs. — A  court  of  equity  may  in  some  cases  enjoin 
the  collection  of  a  judgment  at  law  where  it  appears  that  the  party 


14th  of  March,  1889,  the  date  of  re- 
versal, is  not  stated,  though  it  is 
stated  she  died  in  that  year.  The 
reversal  of  that  judgment  constituted 
material  new  matter  for  which  the 
statute  authorizes  a  judgment  to  he 
reviewed  and  reversed.  The  statute 
authorizes  the  review  of  a  judgment 
for  error  of  law  appearing  in  the 
proceedings  and  judgment  within  one 
year?  or  for  material  new  matter  dis- 
covered since  the  rendition  thereof 
within  three  years.  Rev.  Stat.,  1881, 
§  616.  When  the  jurisdictions  of  law 
and  equity  were  separate,  and  hefore 
the  adoption  of  our  reformed  proced- 
ure, bills  of  review  were  maintain- 
able only  for  relief  against  decrees  in 
equity,  and  they  could  not  be  main- 
tained to  secure  relief  from  judg- 
ments at  law,  such  as  the  Pulaski 
Circuit  Court  judgment  was.  Story, 
Eq.  PI.,  404-406.  Prior  to  the  adop- 
tion of  the  new  system,  a  bill  to  en- 
join that  judgment  would  have  been 


maintainable  because  that  would  hav« 
been  the  only  remedy.  The  ordi- 
nances in  chancery  of  Lord  Chan- 
cellor Bacon,  which  have  never  been 
departed  from,  authorized  a  bill  to 
review  only  decrees  in  chancery  for 
error  appearing  on  the  face  of  the 
record,  and  for  new  matter  discovered 
since  the  rendition  of  the  decree.  The 
section  of  the  Civil  Code  last  above 
cited  extends  that  same  right  to  all 
judgments,  whether  in  the  nature  of 
a  judgment  at  law  or  a  decree  in 
equity.  It  embodies  substantially 
the  ordinances  in  chancery  above 
mentioned,  and  extends  them  to  all 
judgments." 

22.  Lowery  v.  Greene  County,  75 
Iowa,  338,  39  N.  W.  523.  The  rem- 
edy in  this  case,  if  any,  was  held  to 
be  by  appeal. 

23.  Dupre  v.  Anderson,  45  La. 
Ann.  1134,  13  So.  743;  Durac  v.  Fer- 
rari, 25  La.  Ann.  80;  Shreveport  City 
v.  Flournoy,  26  La.  Ann.  709. 


931 


§619       Against  Judgments;  General  Considerations. 

against  whom  it  was  rendered  has  a  claim  against  the  judgment 
plaintiff  and  which  it  appears  that  the  defendant  will  he  unable  to 
recover  except  in  such  a  proceeding  by  way  of  set-off.24  But  it 
is  decided  that  claims  cannot  be  set-off  by  way  of  proceedings  for 
an  injunction  where  such  matter  were  properly  a  subject  of,  and 
should  have  been  set-off  in  the  original  action.25  And  ordinarily 
a  judgment  cannot  be  offset  by  a  claim  not  reduced  to  judgment. 
But  the  insolvency  of  the  party  against  whom  the  set-off  is  claimed, 
is  sufficient  ground  for  the  exercise  of  the  jurisdiction  of  equity  in 
allowing  a  set-off  in  cases  not  provided  for  by  statute,  though  the 
demands  on  both  sides  arc  not  liquidated  by  judgments  or  decrees.26 
So  a  judgment  debtor  is  entitled  to  enjoin  the  collection  of  a 
judgment,  and  to  offset  against  it  a  debt  owing  to  him  by  the 
judgment  creditors,  both  of  whom  are  insolvent,  without  present- 


24.  United      States. — Schwarz      & 

Sons     v.     Kennedy,     156    Fed.     316; 

Boone  v.  Small,  Fed.  Cas.  No.  1644. 

Alabama.— O'Neill     v.     Perryman, 

102  Ala.  522,   14  So.  898. 

Arkansas. — Bettison  v.  Jennings,  8 
Ark.  287. 

Connecticut. — Kelly  v.  Wizard,  49 
Conn.  443. 

Georgia. — Tommy  v.  Ellis,  41  Ga. 
260. 

Illinois. — Watson  v.  Oberne,  25  111. 
App.  214. 

Kentucky.— Mitchell  v.  Stewart,  4 
J.  J.  Marsh,  551. 

Louisiana. — Muse  v.  Roger's  Heirs, 
12  Mart.    (O.  S.)   370. 

New  York. — Ladew  v.  Hart,  8 
App.  Div.  150,  40  N.  Y.  Supp.  509. 

Oregon.— McDonald  v.  McKenzie, 
24  Oreg.  573,  14  Pac.  866. 

West  Virginia. — Jarrett  v.  Good- 
now,  39  W.  Va.  602,  20  S.  E.  575,  32 
L.  R.  A.  321. 

25.  United  States.— Hendrickson 
v.  Hinckley,  17  How.  443,  15  L.  Ed. 
123. 


Louisiana. — Crow    v.    Watkins,   12 
La.  Ann.  845. 

Massachusetts. — Wolcott   v.    Jones, 
4  Allen,  367. 

Michigan. — McGraw    v.    Pettibone, 
10   Mich.  530. 

Missouri.— Hall    v.    Clark,    21    Mo. 
415. 

South  Carolina. — Tollison  v.  West, 
1  Harp.  Eq.  93. 

Virginia. — George  v.  Strange's 
Ex'r,    10   Gratt.   499. 

26.  Gay  v.  Gay,  10  Paige  (N.  Y.), 
376.  Where  a  defendant  has  ob- 
tained a  decree  upon  a  note  and 
mortgage,  which  note  was  subject  in 
his  hands  to  a  counter-claim  against 
his  assignor,  who  is  insolvent,  the 
court  in  which  the  decree  was  ren- 
dered may  entertain  an  original  bill 
to  restrain  its  enforcement.  McDon- 
ald v.  Mackenzie,  24  Oreg.  573,  14 
Pac.  866.  One  having  an  unsatisfied 
judgment  against  his  insolvent  judg- 
ment creditor,  who  has  left  the  State 
may  enjoin  the  sheriff  from  enforcing 
the  latter  judgment  against  him,  and 


932 


Against  Judgments;  General  Considerations.       §  619 

ing  it  to  the  administrator  of  one  who  has  died,  or  reducing  it 
to  judgment,  as  against  the  other.  And  a  judgment  debtor  is 
entitled  to  offset  against  the  judgment  a  claim  against  the  judg- 
ment creditors  which  was  not  due  when  the  action  was  brought, 
but  which  matured  after  the  judgment  creditors  had  become  in- 
solvent, and  before  judgment  was  finally  rendered  against  the 
debtor  on  appeal  in  the  Supreme  Court,  where  he  was  unable  to 
plead  the  offset,  owing  to  its  lack  of  original  jurisdiction.  An 
assignee  of  a  judgment  takes  it  subject  to  all  equities  that  then 
exist  between  the  parties,  including  the  right  of  the  debtor  to  off- 
set against  the  judgment  a  claim  arising  out  of  the  same  transac- 
tion as  the  one  in  which  the  judgment  was  rendered,  but  which 
the  debtor  was  unable  to  plead  at  the  beginning  of  the  action 
because  it  was  not  then  due,  and  which  he  could  not  plead  when 
it  matured,  owing  to  the  pendency  of  an  appeal  in  the  action  to 
the  Supreme  Court.27    In  Alabama  it  is  decided  that  cross  judg- 


maintain  a  bill  to  require  a  set-off. 
Matson  v.  Oberne,  25  111.  App.  213. 

27.  Ellis  v.  Kerr  (Tex.),  23  S. 
W.  1050,  per  Weill,  J.:  "Kerr  and 
Dargan's  estates  were  insolvent,  and 
the  only  remedy  appellant  had  was 
the  equitable  one  of  offsetting  the 
judgment  by  their  debt,  which  he  had 
been  compelled  to  pay;  and  it  would 
have  been  futile  for  him  to  have  pre- 
sented his  claim  to  the  administrator 
of  an  insolvent  estate,  and  await  his 
action  upon  it  (Smalley  v.  Tramel, 
11  Tex.  10;  Bank  v.  Cresson,  75  Tex. 
Sup.  298,  12  S.  W.  819),  or  to  have 
proceeded  to  judgment  against  his 
other  insolvent  debtor,  before  resort- 
ing to  his  equitable  remedy  for  pro- 
tection against  the  judgment.  We 
think  that  the  dismissal  of  the  suit 
by  appellant,  as  to  Kerr,  was  no 
ground  for  the  dissolution  of  the  in- 
junction and  dismissal  of  the  case.  If 
the  owner  of  the  judgment  wished 
to  adjust  any  equities  between  him- 


self and  Kerr,  growing  out  of  the 
transaction  in  relation  to  the  judg- 
ment, he  should  have  pleaded  them, 
and  retained  him  in  the  case  for  the 
purpose  of  having  them  adjudicated. 
Dargan  &  Co.  being  insolvent,  and  ap- 
pellant's debt  not  being  due  from 
them  at  the  time  the  suit  upon  which 
the  judgment  was  finally  rendered  in 
the  Supreme  Court  was  tried  in  the 
District  Court,  such  debt  could  not 
then  have  been  pleaded  in  the  case 
in  offset  to  the  claim  of  Dargan  &  Co. 
against  appellant;  and  Dargan  &  Co. 
having  become  insolvent  before  the 
debt  matured  which  they  had  as- 
sumed to  pay  for  appellant  to  Ebel- 
ing,  and  he  being  compelled  to  pay 
it,  it  would  be  inequitable  to  com- 
pel him  to  pay  the  judgment  of  Dar- 
gan &  Co.  against  him,  if  they  owned 
it,  while  they  owed  him  a  much 
greater  amount,  which  appellant 
could  not  collect,  on  account  of  their 
insolvency.     Nor  do  we  think  that 


933 


§020       Against  Judgments;  Genebal  Co.nsidkuations. 

ments  at  law  may  be  set-off  against  each  other  in  equity  by  either 
party,  on  proof  of  the  insolvency  of  the  other.28 

§  (>20.  Cases  of  set-off  continued. — Where,  in  an  action  by 
a  judgment  debtor  against  his  creditor  and  the  officers  of  the 
County  Court  to  restrain  the  collection  of  the  judgment,  plaintiff's 
ground  for  injunction  rests  primarily  on  an  indebtedness  exceed- 
ing the  judgment,  alleged  to  be  due  him  from  the  judgment  cred- 
itor, and  the  answer  specifically  denies  the  existence  of  such 
indebtedness,  and  intelligently  avers  facts  excluding  the  possibility 
thereof,  it  is  not  error  to  dissolve  the  injunction  and  dismiss  the 
action.29  In  the  absence  of  an  allegation  of  insolvency  the  col- 
had  no  remedy,  except  the  one  pur- 
sued hy  him;  and  we  think,  if  the 
matters  pleaded  are  true,  it  is  a  just 
and  equitable  one." 

28.  Goldsmith  v.  Stetson,  39  Ala. 
183;  Henderson  v.  MeVay,  32  Ala. 
471;  Carroll  v.  Malone.  28  Ala.  521; 
Wray  v.  Furniss,  27  Ala.  471;  Rail- 
road Company  v.  Rhodes,  8  Ala.  200. 
The  mere  insolvency  of  a  judgment 
creditor  will  not,  of  itself,  justify  an 
injunction  against  the  enforcement  of 
a  judgment  at  law  upon  the  ground 
of  a  set-off,  which  might  have  been 
pleaded  at  law  at  the  time  such  judg- 
ment was  recovered.  Sayre's  Admr. 
v.  Harpold.  33  W.  Va.  553,  11  S.  E. 
10. 

29.  Wheeler  v.  Gray,  5  Tex.  Civ. 
App.  12.  23  S.  W.  821,  per  Tarlton, 
C.  J.:  "This  is  a  proceeding  in  in- 
junction, in  which  VV.  A.  Wheeler, 
appellant,  sought  to  restrain  T.  R. 
Gray  and  the  officers  of  the  County 
Court  of  Wilbarger  county  from  the 
collection  of  a  judgment  for  $38.00. 
This  judgment  Gray  had  recovered 
from  Wheeler  in  a  justice's  court, 
and  again,  on  appeal,  in  the  County 
Court.  This  appeal  is  from  the  judg- 
ment of  the  District  Court  dissolving 
the    injunction    and    dismissing    the 


Lane  is  in  any  better  attitude  in  re- 
lation to  the  judgment  by  reason 
of  its  transfer  to  him,  than  Dargan  &. 
Co.  would  be,  if  they  owned  it.  When 
the  judgment  was  recovered.  Dargan 
&  Co.  were  insolvent,  the  debt  to 
Ebeling  had  matured,  and,  on  account 
of  such  insolvency,  appellant  had 
been  compelled  to  pay  it;  and  when 
it  was  assigned  to  appellee,  he  took 
it  subject  to  all  the  equities  that 
then  existed  between  the  parties  to 
the  judgment.  Fieem.  Judgm.,  §  427; 
Wright  v,  Treadwell,  14  Tex.  250.  In 
this  case,  according  to  the  allegations 
in  plaintiff's  bill,  the  appellant's 
claim  is  of  the  same  nature,  it  aris- 
ing from  the  same  transactions  as 
the  one  upon  which  the  judgment  was 
rendered.  It  could  not  be  pleaded  in 
the  suit  in  which  the  judgment  was 
obtained,  because  it  was  not  due,  and 
Dargan  &  Co.  were  solvent.  The  claim 
of  offset  did  not  then  exist  in  ap- 
pellant's favor.  After  the  case  was 
appealed  to  the  Supreme  Court,  and 
Dargan  &  Co.  had  Income  insolvent, 
and  their  debt  paid  by  appellant,  he 
could  not,  on  account  of  its  jurisdic- 
tion, set  it  up  in  that  court  as  an 
offset  to  the  demand  against  him. 
When  the  judgment  was  rendered,  he 


934 


Against  Judgments;  General  Considerations.       §621 

lection  of  a  judgment  will  not  be  enjoined  pending  an  action  by 
defendant  against  plaintiff,  defendant  desiring  to  set  off  the  judg- 
ment which  he  may  obtain  against  that  rendered  against  him.30 

§  621.  Enjoining  judgment  founded  on  perjury A  judg- 
ment at  law  in  favor  of  either  party  cannot  be  annulled  in  equity 
at  the  suit  of  either  party,  on  the  ground  that  it  was  founded 
on  the  perjury  of  the  party  in  whose  favor  it  was  rendered.31  In 
1814  Chancellor  Kent  expressed  the  opinion  that  it  would  be 
setting  a  precedent  most  inconvenient  to  the  public  to  interfere 
in  a  case  like  this,  of  the  alleged  perjury  of  a  witness,  and  to  pro- 
vide for  a  new  trial  when  an  application  for  a  new  trial  has 
already  been  denied  at  law,  and  when  courts  of  law  exercise  a 


suit.  Appellant  in  his  brief  refers  to 
three  assignments  of  error.  As  he 
sets  out,  however,  but  one  of  these 
(the  first),  we  ignore  the  remaining 
two.  Chappell  v.  Railway  Co.,  75 
Tex.  82.  12  S.  W.  977.  The  assign- 
ment set  out  is  to  the  effect  that  '  the 
court  erred  in  dissolving  the  injunc- 
tion on  the  motion  of  the  defendant, 
because  the  answer  of  defendant  was 
insufficient  to  repel  and  overcome  the 
allegations  in  the  petition.'  We  over- 
rule this  assignment.  The  plaintiff's 
ground  for  injunction  rests  primarily 
upon  an  indebtedness  of  $904,  alleged 
to  be  due  him  by  the  defendant.  The 
answer  specifically  denied  the  exist- 
ence of  such  an  indebtedness,  and  in- 
telligently averred  facts  excluding 
the  possibility  thereof.  Indeed,  the 
petition  of  plaintiff  was,  we  think, 
subject  to  the  general  demurrer  with 
which  the  defendant  assailed  it.  The 
alleged  indebtedness  grew  out  of  a 
partnership  for  the  buying  and  sell- 
ing of  meat,  existing  from  December, 
1890,  to  February  17,  1891,  between 
the  plaintiff  and  defendant.  The  in- 
ference from  the  averments  of  the  pe- 
tition   is    quite    strong   that   all   the 


partnership  transactions,  including 
those  giving  rise  to  the  indebtedness 
claimed,  were  fully  settled  between 
the  parties  about  February  17,  1891; 
that  Gray,  in  settlement  of  these 
transactions,  executed  his  note  to 
Wheeler  for  $51.15;  and  that  this 
note  was  itself  litigated  as  an  offset 
by  Wheeler  in  the  suit  which  resulted 
in  the  judgment  sought  to  be  en- 
joined. The  petition  for  injunction 
does  not  seem  to  meet  the  require- 
ments of  article  2876,  Rev.  Stat.,  that 
it  shall  contain  '  a  plain  and  intel- 
ligible statement  of  the  grounds  for 
such  relief.'  The  judgment  is  af- 
firmed." 

30.  Baker  v.  Ryan,  67  Iowa,  708, 
25    N.    W.    890. 

31.  Nelson  v.  First  Nat.  Bank,  70 
Fed.  526;  Woodruff  v.  Johnson  (Su- 
per. N.  Y.),  19  N.  Y.  Supp.  861,  per 
McAdam,  J.:  "It  would  impair  the 
sanctity  of  judgments  and  the  faith 
we  repose  in  them  if  they  could  be 
set  aside  in  equity  upon  grounds 
available  on  mere  motion  addressed 
to  the  courts  which  rendered  them. 
Those  courts  should  have  the  oppor- 
tunity of  vindicating  their  own  honor 


935 


§022       Against  Judgments;  General  Considerations. 

most  liberal  discretion  on  the  subject  of  new  trials,  and  when  the 
injury  complained  of  is  in  a  great  degree  to  be  imputed  to  the 
party's  own  want  of  preparation.32 

§  C22.  Enjoining  judgment  on  bond  given  to  suppress  forgery. 
— When  a  judgment  has  been  entered  upon  a  bond  given  to  obtain 
the  discontinuance  of  a  prosecution  for  forgery,  if  the  defendant 
has  had  no  day  in  court,  by  proceedings  upon  rule  or  otherwise, 
and  is  not  chargeable  with  laches  in  setting  up  his  defense  when 
he  had  opportunity,  the  enforcement  of  tho  judgment  may  be  re- 
strained by  bill  in  equity,  though  five  years  have  elapsed  sinco 
the  bond  was  given.  But  where  pending  an  appeal  from  a  decree 
erroneously  dismissing  such  a  bill,  the  complainant  therein  pro- 
ceeded by  rule  and  obtained  an  order  opening  the  judgment  to 
allow  his  defense  thereto,  if  the  latter  proceedings  appear  of  record 
the  dismissal  of  the  bill  will  be  affirmed.33 


and  the  integrity  of  tlieir  proceed- 
ings. Where  they  are  powerless  to 
do  it,  it  is  time  enough  for  equity  to 
tender  its  aid.  It  is  settled  law,  with 
few  exceptions  (which  do  not  apply 
here)t  that  false  testimony  given  by 
a  party  in  an  action  at  law  is  not 
ground  for  relief  in  chancery.  United 
States  v.  Throckmorton.  98  U.  S.  01; 
Mayor,  etc.,  of  the  City  of  New  York 
v.  Brady,  115  N.  Y.  51)9,  22  N.  E. 
237 ;  Smith"  v.  Nelson.  62  N.  Y.  280." 

32.  Smith  v.  Howry,  1  Johns.  Ch. 
(N.  Y.)  320,  323.  And  see  Cotzhau- 
sen  v.  Kerting,  29  Fed.  821. 

33.  Given's  Appeal,  121  Pa.  St. 
260,  15  Atl.  468,  per  Clark, 
J. :  "  The  real  question  for  con- 
sideration, therefore,  is,  whether 
or  not,  as  a  court  of  equity, 
we  ought  to  enjoin  Howard  R.  Kern 
from  further  proceedings  on  his  judg- 
ment, by  execution  or  otherwise.  It 
would  seem  to  be  settled  in  Pennsyl- 
vania that  chancery  will  grant  relief 
by    injunction    to    stay    proceedings 


where  a  judgment  is  procured  by 
fraud  or  given  upon  a  consideration 
which  is  illegal,  or  upon  a  transac- 
tion contrary  to  public  policy  or  in 
violation  of  the  law,  provided  the  de- 
fendant has  had  no  day  in  court,  and 
has  been  guilty  of  no  laches  in  fail- 
ing to  set  up  the  defense  when  he  had 
an  opportunity  to  do  so.  This  is 
the  doctrine  of  Wistar  v.  McManes, 
54  Pa.  St.  318,  and  that  case  has 
been  followed  in  a  number  of  cases 
in  the  common  pleas.  See  Chegney  v. 
Wright,  7  Phila.  431;  Hetzell  v. 
Bentz,  8  Phila.  261;  Lebanon  Mut. 
Ins.  Co.  v.  Erb,  10  W.  N.  Cas.  113. 
To  the  same  effect  also  is  the  rea- 
soning of  our  late  brother  Trunkey 
in  Knarr  v.  Elgren,  19  W.  N.  Cas. 
531.  See,  also.  Barker  v.  Elkins,  1 
Johns.  Ch.  406;  Hendrickson  v. 
Hinckley,  17  How.  445;  3  Lead.  Cas. 
in  Eq..  194.  The  jurisdiction  in 
equity  in  such  cases  is  also  assumed 
in  Gordinier's  Appeal,  89  Pa.  St.  528, 
and  in  Frauenthal's  Appeal,  100  Pa. 


936 


Against  Judgments;  Genebal  Considerations.       §  623 

§  623.  Execution  for  costs  and  interest  thereon.— In  accord- 
ance with  the  familiar  rule  that  a  debtor  is  not  entitled  to  in- 
junctive relief  unless  he  affirmatively  shows  in  his  complaint  that 
he  has  offered  to  pay  what  he  owes,34  a  judgment  debtor  has  no 
standing  in  a  court  of  equity  to  enjoin  the  collection  of  a  judgment 
ao-ainst  him,  unless  he  offers  to  pay  such  costs  as  the  party  recover- 
in-  the  judgment  has  paid  or  is  liable  to  pay.3'  And  the  col- 
lection of  an  execution  issued  on  a  judgment  for  costs,  will  not 
be  enjoined  on  the  ground  that  the  execution  is  for  a  larger  sum 


St.  290.     In  these  cases,  however,  it 
was    held,    modifying    the    rule    laid 
down  in  VVistar  v.  MeManes,  supra, 
in  this  respect,  that  a  hill  in  equity 
cannot  he  maintained  to  restrain  exe- 
cution   upon    a    judgment    at    law, 
where   a   rule    to    show   cause,   etc., 
founded  on  the  same  facts,  had  pre- 
viously heen  discharged  hy  the  court. 
In  the  case  now  under  consideration, 
the  effect  of  the  demurrer  is  to  admit 
that  the  hond  was  given  in  settlement 
of  the  criminal  charge  of  forgery,  of 
which   the  son-in-law  of   the  ohligor 
was  guilty,  and  that  upon  giving  the 
hond    the*    criminal    was    discharged 
from  arrest  and  imprisonment.     The 
consideration  of  the  hond  was  there- 
fore illegal   (Bredin's  Appeal,  92  Pa. 
St.  245),   and  in   equity  the  obliga- 
tion  was  void.    Such  agreements  have 
a  manifest  tendency  to  subvert  pub- 
lic justice,  and  equity  will  not  per- 
mit them  to  be  enforced.     1  Story's 
Eq     294.     ...     It    comes    within 
the   rule  that  where  the  welfare  of 
society   and    the   vindication    of    the 
law  are  the  chief  objects  the  defend- 
ant may  give  in  evidence  the  illegal- 
ity of  the  contract,  as  a  bar  to  a  suit 
to  enforce  it;  and  this  to  prevent  the 
evil  which  would  be  produced  by  en- 
forcing the   contract   or   allowing   it 
to  stand.    Bredin's  Appeal,  92  Pa.  St. 


245."     On   the   effect   of   taking   the 
rule      and      getting      the      judgment 
opened,  the  court  further  said:     "The 
judgment  having  heen  opened,  the  de- 
fendant  therein    has   opportunity    to 
set  up  her  defense,  and  after  a  trial 
and  judgment  on  the  issue  thus  pre- 
sented,   the    matters    of    defense    set 
forth  in  the  bill  will  be  res  adjudi- 
cate, and  equity  will  not  retry  the 
issue.     ...     If  this   were  not  so, 
the    Court    of    Common    Pleas    must 
hear  and  determine  the  same  matter 
twice.      If,   when   this   record   is   re- 
mitted therefrom,  it  shall  be  made  to 
appear  that  the  complainant  has  al- 
ready obtained  relief  under  proceed- 
ings at  law,  the  court  will  doubtless 
dismiss  the  bill  on  that  ground,  as  we 
would  certainly  do  now  if  the  facts 
alleged  were  disclosed  by  the  record." 
34.  McWliinney    v.     Brinker,     G4 
Ind.  3G0;    Lancaster    v.    DuHadway, 
97  Ind.   505;   Rowe  v.  Peabody,    102 
Ind.  198.  1  N.  E.  353;  Roseberry  v. 
Huff,    27    Ind.    12;    South    Bend    v. 
Notre  Dame  University,  G9  Ind.  344; 
Stilz  v.   Indianapolis,   81     Ind.   5 
Cauldwell    v.     Curry,     93 
Jones  v.  Ewing,  107  Ind. 
E.   819. 

See  §  GIG  herein. 
35.  Russell    v.    Cleary, 
502,  5  N.   E.  414. 


Ind.    3G3; 
313,  G  N. 


105    Ind. 


937 


§  G24       Against  Judgments;  General  Considerations. 

than  the  costs,  as  taxed,  where  it  does  not  appear  that  the  judg- 
ment debtor  has  paid,  not  only  the  amount  of  costs  as  taxed,  but 
also  interest  on  the  same,  since  a  judgment  for  costs  bears  in- 
terest.36 


§  624.  Restraining  levy  to  extort  costs. — An  attempt  to  levy 
an  execution  under  a  judgment  will  be  enjoined  when  it  is  made 
merely  to  extort  the  payment  of  costs  which  a  party  is  not  liable 
to  pay.37  Under  the  Texas  revised  statutes,  providing  that  no 
injunction  shall  be  grant  -1  to  stay  a  judgment,  except  as  to  so 
much  thereof  as  complainant  may  equitably  show  hims.lf  entitled 
to  be  relieved  against,  an  injunction  is  the  proper  remedy  to  re- 
strain execution  for  the  county  attorney's  commissions  on  a  judg- 
ment for  a  fine  which  was,  before  the   issue  of  the   execution, 


36.  Eaton  v.  Markley,  12G  Ind. 
123.  25  N.  E.  15.  That  a  judgment 
for  costs  draws  interest  ill  Indiana, 
see  Church  v.  Hay,  03  Ind.  323; 
Hansford  v.  VanAuken,  79  Ind.  302; 
Palmer  v.  Glover,  73  Ind.  520. 

37.  De  La  Vergne  Refrigerating 
Machine  Co.  v.  Montgomry  Brewing 
Co.,  6  C.  C.  A.  272,  57  Fed.  Ill,  per 
Baker,  J.:  "When  the  bank  took 
judgment  in  this  court  on  the  col- 
lateral note,  there  was  included  in 
the  judgment  the  sum  of  $200  as  a 
reasonable  attorneys'  fee  for  the  col- 
lection of  the  same.  The  stipulation 
for  attorneys'  fees  contained  in  the 
note  was  merged  in  that  judgment. 
The  fact  that  the  judgment  was  ap- 
pealed from  and  affirmed  gives  no 
right  or  claim  for  the  recovery  of 
additional  attorneys'  fees.  The 
amount  of  attorneys'  fees  in  all  such 
cases  is  settled  by  the  judgment  of 
the  trial  court  once  for  all.  Holmes 
v.  Hinkle,  63  Ind.  518.  If  the  bank 
or  its  assignee  has  any  right  to  re- 
cover the  attorneys'  fees  and  expenses 
jn   controversy,   such   right   must   be 


found  dehors  the  collateral  note  and 
contract.  The  parties  presumably 
put  into  the  note  and  contract  their 
entire  agreement  and  understanding 
on  the  subject  of  attorneys'  fees  and 
expenses.  Exprcssio  unius  est  ex- 
oluaio  alterius.  Therefore,  unless  the 
condition  of  the  complainants  is 
worse  by  reason  of  the  note  being 
given  as  a  collateral,  and  not  a  prin- 
cipal obligation,  no  attorneys'  fees 
and  expenses  can  be  recovered  beyond 
the  amount  included  in  the  judgment. 
The  collateral  note  and  contract  de- 
fine and  limit  the  rights  and  liabil- 
ities of  the  parties  in  reference  to  at- 
torneys' fees  and  expenses.  As 
neither  of  these  impose  any  liability 
on  the  complainants  to  pay  the  at- 
torneys' fees  and  expenses  in  con- 
troversy, they  cannot,  in  my  judg- 
ment be  recovered  from  them.  The 
whole  of  the  principal  debt,  with  in- 
terest and  costs,  and  all  attorneys' 
fees  and  expenses  except  those 
herein  involved,  have  been  paid  to  the 
bank  or  its  assignee.  Payment  in 
full  of  the  principal  debt  or  obliga- 


938 


Against  Judgments;  Geneeal  Considerations.       §625 

remitted  by  the  governor.38  An  injunction  suit  by  a  defendant,  in 
execution  brought  against  the  district  clerk  and  the  plaintiff,  to 
restrain  the  collection  of  an  execution  for  costs  on  the  ground  that 
some  of  the  items  in  the  bill  of  costs  are  illegal,  is  in  effect  but  a 
motion  to  retax  the  costs,  and  should  be  treated  as  such ;  in  such  a 
case  it  is  improper  to  enjoin  the  collection  of  items  which  are  not 
complained  of,  or  to  appoint  an  auditor  to  tax  the  costs  for  the 
court,  and  on  dissolution  of  the  injunction,  to  render  judgment  for 
damages.39 


§  625.  Enjoining  execution  where  judgment  has  been  paid. — 

An  injunction  is  an  appropriate  remedy  to  prevent  proceedings  on 
a  satisfied  judgment,40  even  though  the  court  by  which  it  was  ren- 
dered might  have  the  power  to  grant  the  same  relief  upon  motion 
to  stay  the  execution.41    An  alternative  judgment  in  the  form  usual 


tion  ipso  facto  satisfies  and  dis- 
charges the  collateral  contract,  and 
the  judgment  recovered  thereon. 
Colebrooke  Collat.  Sec,  p.  129;  Bow- 
ditch  v.  Green,  3  Mete.  (Mass.)  360. 
The  attempt,  after  such  payment,  to 
use  the  execution  to  coerce  the  pay- 
ment of  the  attorneys'  fees  and  ex- 
penses in  controversy,  is  wrongful 
and  oppressive.  It  is  the  plain  duty 
of  the  court  to  restrain  such  an  abuse 
of  its   process." 

38.  Smith  v.  State,  26  Tex.  App. 
46,  9  S.  W.  274.  Where  the  contro- 
versy is  whether  the  judgment  is  a 
lien  on  homestead  premises,  which  ex- 
ceed in  value  $1,000,  and  an  injunc- 
tion staying  execution  is  issued,  con- 
tingent upon  the  decision  of  this 
question,  the  judgment  creditor  is 
not  entitled,  upon  a  final  decision  sus- 
taining the  lien  of  his  judgment,  to 
attorney  fees  paid  in  defending  the 
suit  upon  its  merits,  as  an  element 
of  damage  occasioned  by  the  injunc- 
tion. Moriarity  v.  Gait,  125  111.  417, 
17  N.  E.  714. 


39.  Lockart  v.  Stuckler,  49  Tex. 
765. 

40.  California. — Thompson  v. 
Laughlin,  91  Cal.  313,  27  Pac.  752. 

Colorado. — Smith  v.  Morrill,  11 
Colo.  App.  284,  52  Pac.  1110. 

Illinois. — Edwards  v.  McCurdy,  13 
111.  496. 

Indiana. — Marsh  v.  Prosser,  64  Ind. 
293;  Bowen  v.  Clark,  46  Ind.  405. 

Iowa.— Heath  v.  Halfhill,  106 
Iowa,  131,  76  N.  W.  522. 

Louisiana. — Woolfolk  v.  Degeloss, 
24  La.  Ann.  199. 

Michigan. — Kallander  v.  Neidhold, 
112  Mich.  329,  70  N.  VV.  892. 

Texas. — Heath  v.  Garrett,  50  Tex. 
264;  Smith  v.  State,  26  Tex.  App. 
417,  9  S.  W.  274. 

Where  check  given  may  be  en- 
joined. Kallander  v.  Neidhold,  112 
Mich.  329,  70  N.  W.  892. 

41.  Thompson  v.  Laughlin,  91  Cal. 
313,  27  Pac.  752;  Crawford  v.  Thur- 
mond, 3  Leigh,  85.  An  injunction 
will  be  allowed  against  an  execution 
issued  after  the  expiration  of  a  year 


939 


§  C2C       Against  Judgments;  General  Considerations. 

in  actions  of  claim  and  delivery  of  personal  property  is  satisfied 
by  a  voluntary  return  of  the  properly  prior  to  the  entry  of  the 
judgment ;  the  party  obtaining  the  judgment  is  not  entitled  to  both 
property  and  value,  and  having  received  the  property,  equity 
treating  that  as  done  which  ought  to  b,'  done,  will  consider  it  as 
received  in  satisfaction  of  the  judgmenl  and  enjoin  its  further 
execution.42  In  Illinois  it  has  been  decided  that  if  a  judgment  has 
been  paid  the  court  may,  on  motion,  stay  further  proceedings  in 
execution  and  compel  the  entry  of  satisfaction  of  record.43  But 
the  collection  of  a  judgment  will  not  be  enjoined  on  the  ground 
that  it  was  recovered  on  .a  prior  judgment,  rendered  on  a  note  held 
as  collateral  security  when  the  debl  was  paid,  lll'tcen  years  before 
the  second  judgment,  and  the  debtor  might  have  ascertained  that 
fact  by  inquiry,  and  on  motion,  before  the  judgment  sought  to  be 
enjoined  was  rendered,  have  had  entry  of  satisfaction  of  record.44 

§  626.  Same  subject. — While  in  some  of  the  States  the  rule 
in  equity  has  obtained  that  judgments  which  have  been  satisfied 
may  properly  be  enjoined,45  the  more  gem  nil  rule  is  that  where 
the  remedy  at  law  is  us  complete  as  the  remedy  in  equity,  a  court 
of  equity  will  not  interfere  by  injunction.46  In  West  Virginia  it 
is  decided  that  in  a  case  where,  by  virtue  of  an  agreement  between 

from  rendition  of  the  judgment,  be-  1  Scam.  552.  And  see,  also,  as  to  the 
cause  it  is  presumed  from  the  delay  existence  of  a  similar  rule,  Smock  v. 
in  taking  out  execution  that  the  judg-  Dade,  5  Rand.  (Va.)  638;  Job  v. 
ment  has  been  paid.  But,  if  it  ap-  Walker,  3  Md.  129;  Dunlap  v.  Clem- 
pears  that  the  judgment  had  in  fact  ents,  18  Ala.  778;  Chambers  v.  Neal, 
not  been  paid,  the  injunction  will  be  13  B.  Mon.  256;  Marsh  v.  Haywood, 
dissolved,  and  any  money  which  had  6  Humph.  (Tenn.)  210;  McMillan  v. 
come  into  the  hands  of  the  sheriff  un-  Baker,  20  Kan.  50  j  Spafford  v.  Janes- 
der  the  execution  will  be  applied  to  ville,  15  Wis.  475;  McDonald  v.  Fal- 
the  judgment  under  a  proper  prayer  vey,  18  Wis.  571. 

therefor  on  the  part  of  the  creditor.  44.   Harding   v.   Hawkins,    141    111. 

Seymour  v.  Hill,  67  Tex.  385,  3  S.  W.  572,  31  N.  E.  307. 

313.  45.  Scogin    v.    Beall,    50    Ga.    88; 

42.  Thompson  v.  Laughlin,  91  Cal.  Craft  v.  Thompson,  51  N.  H.  536; 
313,  27  Pac.  752.  Bowen  v.  Clark,  46  Ind.  405. 

43.  Harding  v.  Hawkins,  141  111.  46.  Black,  Judgments,  §  390;  Mc- 
572,  584,  31  N.  E.  307;  Neal  v.  Hand-  Rae  v.  Davis,  5  Jones  Eq.  140;  Per- 
ley,  116  111.  423,  6  N.  E.  45;  Hoag  v.  rine  v.  Carlisle,  19  Ala.  686;  Lansing 
Starr,  69  111.  365;   Russell  v.  Hogan,  v.  Eddy,  1  Johns.  Ch.  49. 

940 


Against  Judgments  ;  General  Considerations.       §  627 

a  judgment  debtor  and  a  judgment  creditor,  the  judgment  ought 
to  be  entered  as  satisfied,  but  in  lieu  thereof  the  creditor  has  an 
execution  issued  and  levied  upon  the  goods  of  the  debtor,  the  latter 
cannot  obtain  relief  by  injunction  in  a  court  of  equity,  for  the 
reason  that  he  has  a  complete  and  adequate  remedy  at  law  under 
the  provisions  of  the  Code  relating  to  the  quashing  of  execution. 
Where  the  collection  of  a  dormant  judgment  has  been  enjoined, 
if  it  is  made  to  appear  that  it  has  not  been  paid,  the  injunction 
must  be  dissolved;  for  the  only  ground  for  not  issuing  execution 
on  a  dormant  judgment  being  the  legal  presumption  of  its  pay- 
ment; when  this  presumption  ceases,  to  perpetuate  the  injunction 
would  be  in  effect  to  violate  a  rule  which  denies  an  injunction 
unless  irreparable  injury  would  result  from  its  being  refused. 
Where  defendant  tenders  money  into  court,  and  the  court,  after 
giving  judgment  for  plaintiff  for  more  than  was  tendered,  wrong- 
fully applies  such  money  in  payment  of  costs  and  part  payment 
of  plaintiff's  judgment,  and  the  plaintiff  so  receives  it,  defend- 
ant is  not  entitled  to  an  injunction  against  proceedings  by  the 
plaintiff  to  enforce  his  judgment.49 

§  627  Same  subject;  constructive  payment.— Where  an  agent 
authorized  to  collect  a  judgment  takes  a  check  in  payment  know- 
ing that  there  is  money  in  the  bank  to  pay  it,  and  notifies  his 
principal,  who  draws  it  out  on  a  check  previously  given  for 
another  debt,  but  which  had  been  dishonored,  so  that  no  money 
remains  to  meet  the  second  check,  given  on  account  of  the  judg- 
ment, the  judgment  will  be  considered  paid,  so  that  it  may  not 
be  enforced  against  a  surety  for  the  debt  for  which  it  was  ob- 

47    Howell    v     Thomason,  34   W.  Cockerell  v.  Nichols,  8  W    Va.  159; 

Va   794    12  S.  K  1088,  per  Lucas,  J.,  McCoy  v.  Aller,  16  W    Va.  733;  Hall 

referring    to    the    provision    of    the  v.  Taylor,  18  W.  V*  644 
Code-    «< It  will  thus  be  seen  that  this  48.  Seymour  v.  Hill,  67  Tex    385, 

provision  is  ample  to  protect  an  exe-  distinguishing  Watson    v.    Newsham 

cuTion  debtor  from  the  levy  of  an  ex-  17  Tex.  437,  and  North  v.  Swmg,  24 

ecution    upon    a    satisfied    judgment,  Tex.  193 

and  is  fully  as  complete  and  far  less  49 .  Chiejgo £ «.  T.  1 R.  Soj-  Kam 

expensive   and  cumbersome   than   the  man,  119  111.  362,  10  N.  E.  217. 
resort  to  a  court  of  chancery.     See 

941 


§  <>27       Against  Judgments;  General  Constdekatiobs. 

tained ;  and  in  such  a  case  the  surety  may  enjoin  a  transfer  or 
enforcement  of  the  undischarged  judgment  of  record,  without 
waiting  for  any  attempted  enforcement,  as  his  inaction,  with 
Knowledge  of  the  facts,  might  estop  him  from  taking  advantage 
of  the  judgment  creditor's  fraud,  and  be  construed  as  a  ratifica- 
tion of  his  misappropriation  of  the  money.so  And  a  judgment 
debtor  is  entitled  to  enjoin  the  enforcement  of  the  judgment 
where,  having  delivered  to  the  creditor's  agent  property  of  suffi- 
cient value  to  more  than  satisfy  the  judgment,  for  the  purpose  of 
having  it  sold  and  the  proceeds  applied  to  the  judgment,  the 
creditor  converted  it  to  his  own  use  and  did  not  apply  the  pro- 
ceeds to  the  payment  of  the  judgment.51  The  enforcement  against 
land  of  a  judgment  which,  at  the  time  of  the  purchase  of  the 
land,  appeared  on  the  face  of  the  record  to  have  been  satisfied  by 
the  attorney  of  record,  will  be  enjoined  at  the  suit  of  the  pur- 
chaser, though  the  satisfaction  was  in  fact  without  authority;  for 
though  the  attorney  had  no  right  as  between  the  parties  to  enter 
satisfaction  on  a  judgment  without  the  actual  receipt  of  the  money 
due  thereon,  yet  his  statement  of  full  receipt  and  satisfaction  will 

50.  Kallander  v.  Neirhold,  08  Mich.  successor  tendered  the  contractor 
517,  57  N.  W.  571.  A  contractor  $25,000,  with  interest  to  date,  which 
agreed  to  build  a  certain  piece  of  rail-  was  refused,  and  thereupon  it  brought 
road  for  $29,000,  with  the  right  to  re-  a  bill  to  enjoin  the  contractor  from 
tain  possession  thereof  and  run  it  for  taking  possession  under  his  judgment, 
his  own  benefit  until  that  sum  was  and  paid  into  court  the  amount  ten- 
paid.  After  completing  the  road,  and  dered.  Held,  that  the  agreement  was 
before  receiving  full  payment,  he  was  a  settlement  of  the  amount  due  the 
forcibly  dispossessed  by  the  officers  of  contractor,  and,  on  payment  into 
the  railroad  company,  and  brought  an  court,  complainant  was  entitled  to  the 
action  of  forcible  entry  and  detainer  injunction  prayed.  Lamar,  J.,  dis- 
in  the  District  Court.  Pending  this  senting.  Johnson  v.  St.  Louis  T.  M.  & 
action  he  entered  into  a  written  stip-  S.  Ry.  Co.,  141  U.  S.  002,  12  S.  Ct. 
ulation   with    the   company    that    the  124. 

sum  due  under  the  contract  at  the  Check  a  payment. — See  Kalian- 
date  of  the  writing  was  $25,000.  der  v.  Neidhold,  112  Mich.  329,  70  N. 
Judgment  was  rendered  in  his  favor,  W.  892. 

and    affirmed    on    appeal    to    the    Su-  51.  Harrison     Mach.      Works     v. 

preme   Court.      Seven    months    later  Templeton,    82    Tex.    443,    18    S.    W. 

and    before    judgment    was    entered  601. 
below  on  the  mandate,  the  company's 

942 


Against  Judgments  ;  General  Considerations.       §§  628,  629 

protect  subsequent  innocent  purchasers  of  the  land  affected  by  the 
lien  of  the  judgment.52 

§  628.  Enjoining  judgment  for  alimony. — Where  a  husband 
brings  an  action  against  his  wife  to  enjoin  a  judgment  for  alimony 
rendered  in  her  favor  in  an  action  by  her  for  divorce  a  mensa 
et  thoro,  and  for  an  absolute  divorce  from  her,  on  the  ground 
that  at  the  time  of  their  marriage  she  had  a  husband  living, 
and  the  court  properly  grants  him  a  divorce  on  such  ground,  it 
is  error  to  refuse  to  enjoin  the  judgment  for  alimony.53 

S  629.  Enjoining  judgment  for  usury. — The  rule  of  the  New 
York  court  of  chancery  was  that  an  injunction  would  not  be 
granted  to  stay  execution  of  a  judgment,  on  the  ground  that  it 
was  affected  with  usury,  because  the  usury  would  have  been  a 
good  defense  at  law;  and  chancery  would  not  relieve  against  a 
judgment  at  law,  unless  the  defendant  therein  was  ignorant  of 
the  fact  in  question  pending  the  action,  or  it  could  not  be  re- 
ceived as  a  defense.54  A  party's  neglect  to  put  in  his  plea  of 
usury  in  the  action  at  law  bars  him  from  injunctive  relief  in  an 
independent  action.55  After  the  question  of  usury  has  been  tried 
at  law,  equity  will  not  afford  injunctive  relief  except  in  special 
casts  where  the  usurious  facts  were  so  complicated  that  the  law 
court  was  inadequate  to  afford  redress.56  But  a  judgment  will 
not  be  enjoined  on  the  ground  that  there  was  an  agreement  that 

52  Wheeler  v.  Alderman,  34  S.  C.  good  conscience  to  allow  this  judg- 
533  13  S  E  G73.  And  see  Charles-  ment  now  to  be  enforced,  and  the 
ton'  City  Council  v.  Ryan,  22  S.  C.  jurisdiction  of  the  chancery  court  and 
339  of  this  court  to  enjoin  its  collection 

53  Scurlock  v.  Scurlock,  92  Tenn.  is  well  sustained  by  the  authorities. 
629  22  S  W  858,  per  Wilkes,  J.:  2  Pom.  Eq.  Jur.,  §  1300;  Gibs.  Suits 
"Having  never  sustained  the  legal  Eq.,  §  790;  1  Story  Eq.  Jur.,  §  887." 
relation  of  wife,  she  should  not  be  54.  Lansing  v.  Eddy,  1  Johns.  Oil. 
entitled  to  any  alimony  based  upon  (N.  Y.)  49.  And  see  LeGuen  v.  Gouv- 
or  growing  out  of  that  relation,  and  erneur,  1  Johns.  Cas.  (N.  Y.)  436; 
under  the  facts,  as  found  in  the  pres-  Williams  v.  Lee,  3  Atk.  223. 

ent  proceedings,  she  would  not  be  en-  55.  Walker   v.    Gurley,    83    N.    C. 

titled   to    any   relief    as   against   the  429;  Ware  v.  Harwood,  14  Ves.  223. 

present     complainant,     Robert.       It  56.  Lindsley    v.    James.    3     Cold, 

would  be  clearly  against  equity  and  (Tenn.)    477;    McKoin   v.   Cooley,   3 

943 


§  G30       Against  Judgments;  General  Considerations. 

the  debtor  should  pay  compound  interest  on  default  of  prompt 
payment  of  simple  interest  ;57  nor  on  the  ground  that  the  amount 
of  the  judgment  was  made  up  in  part  of  interest  which  had  by 
contract  of  the  parties  been  converted  into  principal,  after  the 
interest  so  converted  had  become  due  and  payable.58 

§  630.  Same  subject;  legal  interest  to  be  paid  or  tendered. — 
One  who  seeks  an  injunction  against  the  foreclosure  of  a  usurious 
mortgage  should  tender  the  amount  fairly  due.59  And  where  after 
judgment  by  default  on  certain  notes  and  part  payment,  the  par- 
ties agreed  to  defer  the  judgment  to  a  subsequent  mortgage  by 
the  debtor,  and  that  the  balance  due  on  the  judgment  be  soon 
paid;  but  the  payment  was  not  made,  and  nearly  fifteen  months 
after  the  judgment  was  rendered  the  creditor  took  out  execution, 
which  the  debtor  sought  to  enjoin  on  the  ground  of  usury  in  the 
notes,  not  alleging  the  amount  of  the  usury  nor  tendering  the 
amount  actually  due,  it  was  held  that  there  was  no  ground  for 
an  injunction.60  Under  the  Delaware  statute,  which  avoids  loans 
for  usury,  the  collection  of  usurious  interest  will  be  enjoined  if  the 
borrower  pays  the  debt  and  lawful  interest;  but  the  whole  contract 
will  not  be  declared  void  at  the  borrower's  suit,  though  it  would  be 
if  the  lender  sought  to  affirmatively  enforce  it  in  equity.61  The 
general  rule  is  that  the  plea  of  usury  is  a  personal  privilege  to  be 
taken  advantage  of  only  by  the  debtor;62  and  therefore  that  a 

Humph.     (Tenn.)    559;    Frierson    v.  57.  Hale  v.  Hale,  1  Cold.   (Tenn.) 

Moody    3  Humph.  5G4;  Buchanan  v.  233. 

Nolin,'3  Humph.  03.  And  see  Thomp-  58.  Parham    v.    Pulliam.    5    Cold, 

son  v.  Berry,  3  Johns.  Ch.  399;  Fan-  (Tenn.)    497. 

nin<r  v.  Dunham,  5  Johns.  Ch.   121;  59.  Norman  v.  Peper,  24  Fed.  403. 

Pickett  v.Pickett,  2  Hill  Ch.  (S.C.),  60.  Neurath    v.     Hecht,     02    Md. 

470    474.     In  Chester  v.  Apperson,  4  221.     And  see  Powell  v.  Hopkins,  38 

Heisk.   (Tenn.)  039,  it  was  held  that  Md.  1,  13;  Walker  v.  Cockey,  38  Md. 

where  the  question  of  usury  was  com-  75,    78;    Hill    v.    Reifsnider,   39   Md. 

plicated    hy    reason    of    repeated    re-  429;    Trumbo  v.    Blizzard,   0   Gill   & 

newals    and    double   charges    for    ad-  J.   (Md.)    18,  24;  Rogers  v.  Rathbun, 

vances,   as   to  which   the   remedy  at  1  Johns.  Ch.   (N.  Y.)    307. 

law  was  not  clear,  a  court  of  equity  61.  Ennis  v.  Ginn,  5  Del.  Ch.  180; 

would   relieve   after  judgment,   with-  Jackson  v.  Henry,  10  Johns.  195. 

out  showing  any  reason  for  not  mak-  62.  Post  v.  Dart,  8  Paige  (N.  Y.), 

ing  the  defense  at  law  other  than  the  639;    Campbell  v.  Johnston,  4  Dana 

complication  and  difficulty.  (Ky.),   177;   Fenno  v.  Sayrc,  3  Ala. 

944 


Against  Judgments;  Geneeal  Considerations.       §  631 

creditor  cannot  enjoin  the  collection  of  a  judgment  obtained  by 
another  creditor  of  the  same  debtor,  on  the  ground  that  the  latter 
paid  him  usurious  interest.63  Thus,  where  a  debtor  is  unable  to 
pay  all  his  debts,  a  junior  judgment  creditor  cannot  enjoin  the 
senior  judgment  of  another  creditor,  on  the  ground  that  the  latter 
has  received  from  the  debtor  a  sufficient  amount  of  usury  to  dis- 
charge his  judgment.64 

§  631.  Enjoining    judgment   when    summons    not    served 

Where  there  is  no  service  of  process  upon  or  notice  given  to  a 
defendant  it  is  a  general  rule  that  a  judgment  rendered  in  such 
a  case  may  be  enjoined.65  So  where  a  false  return  is  made  and  a 
judgment  subsequently  rendered  the  enforcement  of  such  judg- 
ment may  in  some  cases  be  enjoined  where  it  appears  that  the 
defendant  had  no  notice  of  the  proceedings.66  But  it  is  decided  that 
a  court  of  equity  will  not  vacate  a  judgment  at  law  merely  on 
the  ground  that  the  officer's  return,  that  he  had  served  the  sum- 
mons on  defendant  to  the  judgment  by  leaving  a  copy  of  the 
process  at  his  usual  place  of  residence,  was  false ;  but  it  must  also 
be  averred  and  proved  that  defendant  to  the  judgment  has  a 
meritorious  defense.67    In  Alabama  it  has  been  decided  that  judg- 

458;   DeWolf  v.  Johnson,  10  Wheat.  See  §  642  herein. 

(U.  S.)   367,  6  L.  Ed.  343.  66.  Martin  v.  Parsons,  49  Cal.  94; 

63.  Gatewood  v.  Macon  Bank,  49  McNeil  v.  Edie,  24  Kan.  108;  Bram- 
Ga-  45.  lett  v.  McVey,  91  Ky.  151,  75  S.  W. 

64.  Phillips  v.  Walker,  48  Ga.  55.  49. 

65.  Alabama.— Robinson    v.    Reid,  67.  Janes  v.  Howell,  37  Neb.  320, 
50  Ala.  69.  55  N.  W.  965,  per  Ragan,  C.:  "  While 

Arkansas. — Ryan  v.  Boyd,  33  Ark.  there  is  some  conflict,  the  weight  of 

738.  authority  undoubtedly  is  that  a  court 

Colorado. — Wilson    v.    Hawthorne,  of  equity  will  not  enjoin  a  judgment 

14  Colo.  530,  24  Pac.  548,  20  Am.  St.  at  law  merely  on  the  ground  that  the 

Rep.  290.  process  in  the  suit  in  which  the  judg- 

Illinois. — Owens    v.    Raustead,    22  ment  was  rendered  was  not  served  on 

"^   lfil-  the    defendant,    or,    in    other    words, 

Iowa.— Gerrish  v.  Hunt,  66  Iowa,  that  the  return  of  the  officer  as  to 

682.  24  N.  W.  274;  Givens  v.  Camp-  service  is  in  fact  false.     To  justify 

bell.  20   Iowa,  79.  the  interposition  of  a  court  of  equity 

Mississippi.— Southern  Exp.  Co.  v.  in   such  a  case,  it  must  be  further 

Craft,  43  Miss.  508.  shown  that  if  the  relief  sought  be 

945 

CO 


§032       Against  Judgments;  General  Considerations. 

merit  at  law  will  not  be  enjoined  merely  on  the  ground  that  process 
was  not  served  on  defendant,  but  it  must  also  be  shown  that  he  has 
been  precluded  by  the  irregularity  from  urging  a  valid  defense;68 
and  this  rule  seems  to  be  sustained  by  the  weight  of  authority,6* 
and  is  held  to  exist  in  Illinois,  where  it  is  provided  by  statute,  that 
"  only  so  much  of  any  judgment  at  law  shall  be  enjoined,  as  the 
complainant  shall  show  himself  equitably  not  bound  to  pay,  and  so 
much  as  shall  be  sufficient  to  cover  costs."  70  In  Tennessee  and 
Arkansas,  on  the  contrary,  it  has  been  hold  that  a  judgment  ren- 
dered without  proper  service,  should  be  enjoined  without  inquiry 
into  the  existence  of  a  valid  defense;71  and  quite  a  similar  rule 
prevails  in  Texas.72 

§  632.  Same  subject. — A  judgment  against  a  surety  on  a  bond 
for  the  appearance  of  an  accused  person  is  void  if  there  was  no 
preliminary  service  on  him,  and  in  such  a  case,  the  District  Court 
of  the  parish  of  the  surety's  domicile  has  jurisdiction  to  enjoin 


granted  a  different  result  will  be  ob- 
tained from  that  already  adjudged  by 
the  judgment  alleged  to  be  void.  Col- 
son  v.  Leitch,  110  111.  504.  It  is, 
however,  the  settled  law  of  his  State, 
that  a  court  of  equity  will  not  set 
aside  a  judgment  at  law  which  is 
regular  on  its  face,  unless  it  is  shown 
that  the  judgment  was  rendered 
when  no  cause  of  action  existed.  Os- 
born  v.  Gehr,  29  Neb.  661,  46  N.  W. 
84." 

See,  also,  Lasher  v.  Annunziata, 
119  111.  App.  653;  Meyer  v.  Wilson 
(Ind.   1906),  76  N.  E.  748. 

Where  the  sheriff  makes  a 
false  return  of  a  service  on  the  de- 
fendant, it  would  seem  to  be  as 
equitable  to  leave  him  to  his  rem- 
edy against  the  sheriff  for  the  false 
return,  as  to  relieve  him  from  the 
judgment  and  turn  the  plaintiff  for 
redress  to  the  sheriff.  Gregory  v. 
Ford,  14  Cal.  138.     See,  also,  Gard- 


ner v.  Jenkins,  14  Md.  58;  Harris  v. 
Gwin,  10  Sm.  &  Mar.  503. 

68.  Secor  v.  Woodward,  8  Ala. 
500;  Crafts  v.  Dexter,  8  Ala.  767. 

69.  Gregory  v.  Ford,   13  Cal.  138 
Taggart    v.    Wood,    20     Iowa,    236 
Crawford    v.    White,    17    Iowa,    5G0 
Fowler  v.   Lee,    10  Gill   &  J.    (Md.) 
363;  Freeman  on  Judgments,  §  498. 

70.  Colson  v.  Leitch,  110  111.  504. 

71.  Bell  v.  Williams,  1  Head,  229; 
Ridgeway  v.  Tennessee  Bank,  11 
Humph.  523;  Ryan  v.  Boyd,  33  Ark. 
778.  And  see  Kizer  Lumber  Co.  v. 
Mosely,  56  Ark.  544,  20  S.  W.  409. 

72.  In  Glass  v.  Smith,  66  Tex.  548, 
2  S.  W.  195,  the  court  said:  "Juris- 
diction over  the  person  of  a  defend- 
ant is  acquired  by  his  voluntary  ap- 
pearance or  by  the  service  upon  him 
of  such  process  as  the  law  provides. 
In  the  case  before  us,  Glass  had  not 
voluntarily  come  before  the  court  as 
a  litigant,  and  thus  conferred  juris- 


946 


Against  Judgments;  General  Considerations. 


633 


a  fieri  facias  issuing  from  the  District  Court  of  another  parish 
where  the  judgment  was  rendered,  and  to  hear  the  cause  on  the 
merits;73  but  such  a  case  is  not  to  be  understood  as  creating  an 
exception  to  the  general  rule  that  the  execution  of  a  valid  judg- 
ment belongs  to  the  court  which  rendered  it.74    Where  a  judgment 


diction  upon  the  court  over  his  per- 
son; nor  had  he  been  brought  before 
the  court  by  any  process  known  to 
the  law.  Had  he  availed  himself  of 
the  unauthorized  proceeding  by  cer- 
tiorari, as  by  asking  an  adjudication 
under  it,  or  had  he  in  any  way  rati- 
fied the  act  of  the  person  who  caused 
it  to  be  instituted,  it  might  with  pro- 
priety now  be  held  that  he  is  not  en- 
titled to  the  relief  which  he  seeks. 
There  is,  however,  nothing  of  the 
kind  in  this  cause  and  the  judgment 
rendered  against  him,  from  which  he 
now  seeks  relief,  was,  and  is  a  nul- 
lity. There  has  been  some  conflict  in 
the  decisions  of  different  courts  as  to 
whether  relief  can  be  given  against  a 
void  judgment  by  injunction;  but  in 
this  State  this  has  been  deemed  the 
appropriate  relief.  Smith  v.  De- 
weese,  41  Tex.  595;  Cooke  v.  Burn- 
ham,  32  Tex.  129;  Chambers  v. 
Hodges,  23  Tex.  110." 

73.  Langridge  v.  Judge,  46 
La.  Ann.  29,  14  So.  427,  per  Breaux, 
J.:  "The  broad  allegation  of  the 
petition  for  the  injunction  includes 
nonservice  of  any  notice  of  judgment 
of  forfeiture.  In  some  respects  the 
grounds  of  injunction  are  not  clearly 
defined.  Sufficient  remains  to  justify 
the  ruling  that  the  case  be  heard  on 
the  merits.  The  allegations  upon 
the  face  of  the  papers  suggest  the 
unavoidable  inference  that  there  was 
not  actual  process  to  sustain  a  fi.  fa. 
In  Lawes  v.  Chinn,  4  Mart.  N.  S.  388, 
this  court  held  the  injunction  was  a 
remedial  writ  against  the  sheriff  to 


prevent  an  immediate  injury,  which 
could  not  otherwise  be  effectually 
warded  off;  and  the  plaintiff  was 
necessarily  cited  to  gainsay  the  alle- 
gations of  the  party  and  assert  his 
rights.  Ex  necessitate  rei,  it  must 
have  issued  by  the  judge  of  the  par- 
ish in  which  the  execution  was  to  be 
carried  into  effect.  The  question  re- 
ceived brief  consideration  in  case  of 
Police  Jury  v.  Michel,  4  La.  Ann.  84, 
and  in  Hobgood  v.  Brown,  2  La.  Ann. 
323.  The  plea  is  not  that  the  pro- 
cess is  voidable,  but  that  it  is  void. 
It  would  be  a  hardship  to  compel  a 
person  to  repair  to  a  distant  parish 
to  plead  if  a  process  is  absolutely 
void.  The  jurisdiction  quoad  the 
seizure  does  not  attach  unless  it  is 
predicated  of  process  sufficient  to 
give  the  seizure  the  appearance  of 
legal  sanction.  If  entirely  wanting 
in  process,  there  can  be  no  seizure 
made  that  will  divest  the  court  of 
the  domicile  and  of  the  situs  of  the 
property  from  arresting  a  void  seiz- 
ure." 

74.  State  ex  rel.  v.  Judge  (La.), 
14  So.  427,  per  Breaux,  J.:  "The 
rule  that  the  execution  of  judgment 
belongs  to  the  court  by  which  the 
cause  has  been  tried,  remains  un- 
changed and  is  not  enlarged  by  our 
decision  in  this  case.  We  adhere  to 
the  principles  laid  down  in  Arthurs 
v.  Sheriff,  43  La.  Ann.  416,  9  So.  126, 
from  which  we  do  not  depart  by  de- 
ciding that  in  proceedings  entirely 
void  a  defendant  is  not  without  rem- 
edy before  the  court  of  his  domicile." 


947 


§  633       Against  Judgments;  Geniual  Considerations. 

is  rendered  without  defendant  having  been  served,  and  it  does  not 
appear  that  he  ownes  anything,  equity  will  relieve.75 

§  633.  Same  subject  continued. — A  judgment  against  a  defend- 
ant who  was  never  served  with  process,  and  whose  appearance  in 
the  action  was  entered  by  an  attorney  without  his  knowledge  or 
consent,  may  be  enjoined,  though  such  defendant  does  not  show 
that  he  has  any  defense  to  the  claim  sued  <>n.76  Proceedings,  how- 
ever, on  a  judgment  against  sureties  on  a  bond,  should  not  be 
restrained  for  an  alleged  want  of  due  service,  without  a  meritorious 
defense  having  been  shown,  as  equity  will  relieve  from  real  and 
not  from  mere  technical  wrongs.'7  And  one  who  is  aggrieved 
by  a  judgment  rendered  in  his  absence,  in  order  to  obtain  relief 
in  equity,  must  show  not  only  that  he  was  not  summoned,  but 
also  that  he  did  not  know  of  the  action  in  time  to  make  his  do- 


75.  Gerrish  v.  Hunt,  6G  Iowa,  682, 
24  N.  W.  274. 

76.  Mills  v.  Scott  43  Fed.  452. 

77.  State  v.  Hill,  50  Ark.  458,  8 
S.  W.  401,  per  Cockrill,  C.  J.:  "  Re- 
lief is  not  granted  merely  because 
the  court  assumed  jurisdiction  of 
the  defendant's  person  upon  a  false 
return  of  service  of  process.  To  war- 
rant interference,  the  false  return 
must  have  resulted  in  an  injury  to 
the  defendant  under  such  circum- 
stances as  would  render  it  uncon- 
scionable to  permit  the  judgment  to 
be  executed.  Gibson  v.  Armstrong, 
32  Ark.  438;  Johnson  v.  Branch,  48 
Ark.  535.  .  .  .  The  rule  requir- 
ing a  showing  of  merits  before  reliev- 
ing against  a  judgment  obtained 
through  unavoidable  casualty  or  mis- 
fortune, has  always  been  enforced  by 
this  court,  both  before  and  since  the 
decision  in  Ryan  v.  Boyd,  33  Ark. 
778.  It  holds  good,  it  seems,  even  in 
cases  where  the  judgment  is  obtained 


through  fraud.  White  v.  Crow,  110 
U.  S.  183,  4  S.  Ct.  71;  Lawson  v. 
Bettison.  12  Ark.  401.  .  .  .  The 
better  established  rule  unquestion- 
ably is  that  before  a  court  of  equity 
will  relieve  against  a  judgment  for 
want  of  service  on  defendant,  the 
latter  must  aver  and  prove  that  if 
the  relief  is  granted  a  result  will  be 
attained  different  from  that  reached 
by  the  judgment  complained  of.  Col- 
son  v.  Loiteh,  110  111.  504;  Gregory  v. 
Ford,  14  Cal.  138;  Taggart  v.  Wood, 
20  Iowa,  236;  Saunders  v.  Albritton, 
37  Ala.  716;  Fowler  v.  Lee,  10  Gill  & 
J.  358.  The  statute  expressly  re- 
quires a  defense  to  be  shown  in  all 
cases  in  which  the  proceeding  to  va- 
cate may  be  had  in  the  court  which 
rendered  the  judgment.  Mansf.  Dig. 
3912;  Boyd  v.  Roane,  49  Ark.  397. 
And  whether  this  case  is  within  the 
statute  or  not,  the  rule  is  applicable. 
Ryan  v.  Boyd,  33  Ark.  778,  is  over- 
ruled on  that  point." 


948 


Against  Judgments  ;  General  Consideeations.       §  634 

fense.78  And  where  in  an  action  to  enjoin  the  collection  of  a  judg- 
ment, rendered  without  service  of  process,  the  answer  denied  the 
only  defense  to  the  judgment  urged,  it  was  held  that  the  injunction 
should  have  been  dissolved  on  the  answer,  upon  the  giving  of  a 
refunding  bond  under  the  Alabama  Code.79  Again,  a  complaint  to 
enjoin  an  execution  sale  under  judgment  by  a  justice  of  the  peace 
simply  alleging  that  plaintiff  had  no  knowledge  of  the  judgment 
for  more  than  thirty  days  after  its  rendition,  is  insufficient;  it 
should  allege  also  that  plaintiff  was  neither  served  with  the  sum- 
mons nor  appeared  in  the  action  in  which  the  judgment  was  ren- 
dered.80 

§  634.  Enjoining  judgment  if  summons  served  on  Sunday. — 
In  the  absence  of  a  contrary  statute,  judicial  proceedings  which 
take  place  on  Sunday  are  void.81  And,  therefore,  it  has  been 
decided  in  Montana  that  if  the  summons  in  an  action  is  served  on 
defendant  on  Sunday,  and  judgment  entered  by  default,  it  is 
void  and  may  be  relieved  against  by  injunction,  on  the  ground 
that  the  court  acquired  no  jurisdiction  over  the  defendant.82  And 
in  such  a  case  the  Montana  rule  is,  that  the  defendant  need  not 

78.  Bently  v.  Dillard,  6  Ark.  79;  6  S.  E.  810.  In  this  case  it  was  also 
Conway  v.  Ellison,  14  Ark.  360.  held  that  the  judgment  was  not  en- 
Plaintiff  alleged  that  he  was  surety  joinable  as  void,  because  rendered  by 
on  a  note  to  defendant  for  the  price  the  court  sitting  on  the  fourth  of 
of  a  horse;  that  defendant  aided  the  July. 

principal    to    trade    the   horse    for   a  79.  Rice  v.  Tobias,  83  Ala.  348,  3 

mare,    against    plaintiff's    objection;  So.   670. 

that    plaintiff    notified    defendant    to  80.  Farrington  v.  Brown,  65  Cal. 

sue  said  note,  both  before  and  after  320.  4  Pac.  26. 

maturity,  and  make  his  money  out  of  81.  Story   v.    Elliot,    8    Cow.    27; 

the  property,  as  the  principal  was  in-  Chapman  v.  State,  5  Blackf.    (Ind.) 

solvent;    that,    afterwards,    the    note  111;    Blood    v.    Bates,    31    Vt.    147; 

was  sued  on,  and  declaration  served  Pearce  v.  Atwood,  13  Mass.  324;  Ar- 

on  plaintiff  by  leaving  a  copy  at  his  thur  v.  Mosby.  2  Bibb.    (Ky.),  589; 

residence   during  his   absence,   plain-  Nevada  v.  California    Min.    Co.,    13 

tiff  having  no    notice    of  suit  until  Nev.  213;    Field  v.  Park,   20  Johns, 

after  judgment;  that  defendant  knew,  140,  141;  Whitney  v.  Butterfield,  13 

and    resignedly    took    advantage,    of  Cal.    342. 

plaintiff's    absence;     that    execution  82.  Hauswirth      v.      Sullivan,      6 

had  been  issued  and  levied  on  plain-  Mont.  203,  9  Pac.  798. 

tiff's   property.     Held,  that   plaintiff  See,  also,  Alabama. — Crafts  v.  Dex- 

was    not    entitled    to    an    injunction  ter.  8  Ala.  767;   Brooks  v.  Harrison, 

against  the  enforcement  of  the  judg-  2  Ala.  209. 

ment.     Hamer  v.  Sears,  81  Ga.  288,  Iowa. — Stone  v.   Skerry,   31   Iowa, 

949 


§635       Against  Judgments;  General  Considerations. 

make  a  motion  to  set  the  judgment  aside,  but  may  treat  it  as  a 
mere  nullity,  for  want  of  jurisdiction,  until  it  is  attempted  to  be 
enforced  against  him,  and  thai  may  bring  an  action  in  equity  to 
have  it  declared  so.83  And  an  offer  to  pay  a  void  judgment,  on 
condition  that  it  be  set  aside,  takes  the  case  out  of  the  rule  that 
execution  of  a  void  judgment  will  not  'be  enjoined  unl  38  it  appears 
that  a  different  result  would  be  reached.84  Equity  will  not  inter- 
fere to  set  aside  a  judgment  based  on  an  illegal  servic.  ,  unless 
the  judgment  is  unjust;  and  this  must  be  made  to  appear  from  the 
allegations  of  the  petition.85 

§  635.  Judgment  without  notice  of  hearing ;  defective  sum- 
mons.— A  judgment  rendered  by  a  justice  of  the  peace  without 
due  notice  to  defendant  of  the  time  and  place  of  hearing,  cannot, 
it  is  held,  be  set  aside  and  enjoined  by  suit  in  the  superior  court, 
as  the  remedy  in  such  a  case  is  by  a  motion  before  the  justice  to 
set  it  aside,  or  by  a  writ  of  recordari  in  the  superior  court.86  And 
it  is  decided  that  a  threatened  sale  of  land  on  execution,  under  a 
judgment  for  deficiency,  rendered  in  foreclosure  proceedings,  will 
not  be  enjoined  because  the  court  had  not  acquired  jurisdiction  of 
the  mortgagor's  person  by  service  of  process.  The  judgment  being 
void,  a  sale  thereunder  is  without  any  authority  whatever,  and 
cannot  work  irreparable  injury  to  the  mortgagor.87  But  in  Col- 
orado, in  a  case  in  which  it  appeared  that  the  summons  was  de- 
fective, and  did  not  comply  with  the  statute,  it  was  held  that  the 

582;  Harshey  v.  Blackmar,  20  Iowa,  Illinois.— Jones  v.  Neely,  82  111.  72. 

161.  Kansas. — Bond  v.   Wilson,   8   Kan. 

Pennsylvania. — Miller   v.    Gorman,  229. 

38  Pa.   St.  309.  "New  York. — Latham  v.  Edgerton,  9 

Tennessee. — Ingle    v.    McCurry,     1  Cow.    227;    Denning    v.    Corwin,    11 

Heisk.  26;  Bell  v.  Williams,  1  Head,  Wend.  G48. 

229;  Estis  v.  Patton,  3  Yerg.  382.  84.  Rice  v.  American  Nat.  Bank,  3 

Wisconsin. — Johnson    v.    Coleman,  Colo.  App.  81,  31  Pac.  1024. 

23  Wis.  452.  85.  Sharp  v.  Schmidt,  62  Tex.  263. 

83.  Hauswirth      v.      Sullivan,      6  86.  Gallop  v.  Allen,  113  N.  C.  24, 

Mont.  203,  211,9  Pac.  798.  18  S.  E.  55;   King  v.  Wilmington  & 

See,  also,  United  States.— Kihhe  v.  W.  R.  Co.,  112  N.  C.  318,  16  S.  E.  929; 

Benson,  17  Wall.  624,  21  L.  Ed.  741.  Whitehurst  v.  Farmers'  Transporta- 

Connecticut. — Aldrich  v.  Kinney,  4  tion  Company,   109  N.  C.  344,  13  S. 

Conn.   383;    Wood  v.  Watkinson,   17  E.  937. 

Conn.  580.  87.  Gillam  v.  Arnold,  32  S.  C.  503, 

950 


Against  Judgments;  General  Considerations.       §§636,637 

judgment  as  against  both  the  defendant  and  garnishee,  was  void 
for  want  of  jurisdiction  of  the  persons,  and  that,  therefore,  it  was 
proper  to  restrain  the  enforcement  of  the  judgment.88  In  an  action 
to  enjoin  the  enforcement  of  an  execution  on  the  ground  of  irregu- 
larity in  the  service  of  summons  on  defendant  on  motion  for  leave 
to  issue  it,  where  the  complaint  does  not  deny  that  defendant  ap- 
peared at  the  hearing  of  the  motion,  nor  show  that  the  proceeding 
was  taken  against  him  without  notice,  it  does  not  state  a  cause  of 
action,  as  pleadings  are  construed  most  strongly  against  the 
pleader.89  And  where  a  judgment  is  rendered  on  the  service  of  an 
unauthorized  summons  it  is  decided  that  an  injunction  will  not  be 
granted  against  its  enforcement  where  it  does  not  appear  that  a 
good  defense  exists  against  the  judgment.90 

§  636.  Enjoining  judgment  for  irregularities.— Injunction  will 
not  lie  to  restrain  the  collection  of  a  judgment  rendered  by  a  justice 
of  the  peace  on  the  ground  of  irregularities  occurring  at  the  trial, 
since  an  adequate  legal  remedy  may  be  had  by  appeal.91  And 
generally  a  judgment  will  not  be  enjoined  for  errors  and  irregu- 
larities in  the  proceedings,  the  proper  remedy  being  to  correct  them 
in  the  court  where  suit  was  brought,  or  by  appeal.92  And  where 
parties  to  foreclosure  proceedings  agreed  as  to  the  time  and  manner 
of  enforcing  the  decree,  it  was  held  that  injunction  could  not  lie  to 
restrain  a  sale  contrary  to  the  agreement,  as  the  court  granting  the 
decree  had  control  of  it,  and  jurisdiction  for  all  relief  in  the  fore- 
closure suit.93 

§  637.  Enjoining  void  judgments.— It  may  be  stated  as  a  gen- 
eral rule  that  a  party  may  be  restrained  from  enforcing  a  void 

92.  Clopton    v.     Carloss,   42   Ark. 

UM    Rice  v   American  Nat.  Bank,  3       560;   Young  v.  Deneen    200  111.  350 

n  i       a™    I      31  Pac    1024.  77  N.  E.  193;  Hart  v.  O'Rourke,  151 

C°89    Pursel 'v    Del  ,16 Or.  295,  18       Ind.    205,    51    N.    E.    330;    Davis   v. 

89.  Fursei  v.  ue*  ,  Clements,    148    Ind.    605,    47    N.    E. 

^90    Fi'ches  v.  Vick,   50  Neb.  401,  1056;    Missouri,  R.  *  T    R.  Co.  v. 

xr   w   oil  Warden,  73  Mo.  App.  117. 

69  N.  W.  yai.                            12R   ,  d  93.  Buell    v.    San   Francisco    Sav- 

91.  Parsons  v.   Pierson,    128  ma.  w* 

479,  28  N.  E.  97.  ,nS3  Um0D'  65   Cal  *9*'  4  *""   "* 

951 


§  G37       Against  Judgments;  General  Considerations. 

judgment.94  The  averments  of  the  petition  in  an  action  to  enjoin 
the  collection  of  a  judgment  on  the  ground  that  the  judgment  was 
void  should  affirmatively  state  facts  which  show  that  the  judgment 
was  void.95  The  rule,  however,  is  subject  to  the  qualification  in 
most  jurisdictions  that  it  must  appear  that  the  party  seeking  such 
relief  has  no  adequate  remedy  at  law,  or,  having  a  remedy,  has 
exhausted  it.96    The  plaintiff  must  show  by  his  bill  for  injunction 


94.  Alabama. — Martin  v.  Atkin- 
son, 108  Ala.  314.  18  So.  888. 

California. — Chester  v.  Miller,  13 
Cal.   558. 

Georgia. — Austin  v.  McLarin,  51 
Ga.  467. 

Indiana. — Hart  v.  O'Rourke,  151 
Ind.  205,  51  N.  E.  330. 

Kansas. — Cook  v.  Senior,  3  Kan. 
App.  278,  45  Pac.  126. 

Louisiana. — Hernandez  v.  James, 
23   La.   Ann.   483. 

Missouri. — Goldie  Const.  Co.  v. 
Richmond  Const.  Co.,  112  Mo.  App. 
147,  86  S.  W.  587;  Gazollo  v.  Mc- 
Cann.  63  Mo.  App.  414.  But  com- 
pare Strauh  v.  Simpson,  74  Mo.  App. 
230. 

Nebraska. — Kaufman  v.  Drexel,  56 
Neh.  229,  76  N.  W.  559. 

Oklahoma. — Weber  v.  Dillon,  7 
Okla.  568.  54  Pac.  894. 

Tennessee. — Caruthers  v.  Harts- 
field,  3  Yerg.  366,  24  Am.  Dec.  580. 

Texas.— See  Gulf  C.  &  S.  F.  R.  Co. 
v.  Blanckenbeckler,  13  Tex.  Civ.  App. 
249.  35  S.  W.  331. 

Under  the  Indiana  Revised 
Statutes  of  1881,  which  provide 
for  restraining  proceedings  on  a  final 
judgment,  the  judgment  of  a  justice 
of  the  peace  will  not  be  enjoined,  on 
collateral  attack,  on  the  ground  that 
the  justice  tried  the  case  by  a  jury 
of  twelve,  instead  of  six,  as  the  judg- 
ment was  not  void  for  that  reason. 
Rhodes-Burford  Furniture  Co.  v.  Mat- 


tox,  135  Ind.  372,  34  N.  E.  326,  35  N. 
E.  11,  per  McCabe,  J.:  "This  was  a 
collateral  attack  upon  the  judgment, 
and  it  has  been  settled  by  a  long  line 
of  cases  in  his  court,  that  for  mere 
error  or  irregularity  in  the  proceed- 
ing of  a  court  of  special  and  limited 
jurisdiction,  where  such  court  has 
jurisdiction  over  the  parties  and  sub- 
ject of  the  action,  the  judgment  can- 
not be  collaterally  attacked  for  such 
error  or  irregularity,  any  more  than 
if  the  court  was  one  of  general  juris- 
diction. Argo  v.  Barthand,  80  Ind. 
63;  Stoddard  v.  Johnson,  75  Ind.  20; 
Hume  v.  Draining  Assoc'n,  72  Ind. 
499;  Goddard  v.  Stockman.  74  Ind. 
400;  Mu Mil; in  v.  Bloomington,  72  Ind. 
161;  Miller  v.  Porter,  71  Ind.  521; 
Porter  v.  Stout,  73  Ind.  3;  Houk  v. 
Barthold.  73  Ind.  21;  Fetherston  v. 
Small.    77    Ind.    143." 

Where  judgment  is  only  void- 
able will  not  he  enjoined.  Hart 
v.  Manahan,  70  Ohio  St.  189,  7  N. 
E.  696. 

95.  Zimmerman  v.  Trude  (Neb. 
1908),  114  N.  W.  641. 

96.  Alabama. — Murphree  v. Bishop/ 
79  Ala.   404.  \ 

Arkansas. — Fuller  v.  Tounsley  My-  ' 
rick  D.  G.  Co.,  58  Ark.  314,  24  S.  W.  ' 
635. 

Georgia. — Bagwell  v.  Head,  40  Ga. 
145. 

Nevada. — Dalton  v.  Libby,  9  Nev. 
192. 


952 


Against  Judgments;  Geneeal  Considerations. 


63S 


that  he  has  no  adequate  remedy  at  law,  either  by  appeal  from  the 
judgment,  or  by  certiorari,  or  by  application  to  the  court  which 
rendered  it.97  And  in  some  decisions  it  is  also  held  that  the  judg- 
ment must  not  be  one  which  is  void  upon  its  face.98  So  where  a 
judgment  recovered  against  plaintiffs  as  garnishees  was  void,  an 
injunction  restraining  the  defendants  from  collecting  the  judg- 
ment by  execution  was  held  to  be  properly  granted.99 

§  638.  Judgments  void  for  want  of  jurisdiction. — Where  a 
judgment  is  void  for  want  of  jurisdiction  it  is  generally  held  that 
its  enforcement  may  be  enjoined.1  The  rule,  however,  is  subject 
to  limitations  asserted  in  various  decisions  such  as  that  the  judg- 


New  Mexico. — Gutierres  v.  Pino,  1 
N.  M.  392. 

Texas — Geers  v.  Scott  (Civ.  App.), 
33  S.  VV.  587. 

97.  Fuller  v.  Townsley-Myrick 
Drygoods  Co.,  58  Ark.  314,  24  S.  W. 
635;  Winfield  v.  McLure,  48  Ark. 
510,  3  S.  W.  439;  Shaul  v.  Duprey, 
48  Ark.  331,  3  S.  W.  366. 

98.  Martin  v.  Atkinson,  108  Ala. 
314,  18  So.  888;  Kaufman  v.  Drexel, 
56  Neb.  229,  76  N.  W.  559.  See  Goldie 
Const.  Co.  v.  Richmond  Const.  Co., 
112  Mo.  App.  147,  86  S.  W.  587. 

99.  Rice  v.  American  Nat.  Bank,  3 
Colo.  App.  81,  31  Pac.  1024,  per  Rich- 
mond, P.  J.:  "All  exceptional  meth- 
ods of  obtaining  jurisdiction  over  per- 
sons not  found  within  the  State,  must 
be  confined  to  the  cases  and  exercised 
in  the  way  precisely  indicated  by  the 
statute.  In  Padden  v.  Moore,  58 
Iowa.  703.  this  doctrine  is  laid  down: 
A  party  cannot  be  required  to  appear 
as  garnishee  at  any  other  time,  any 
more  than  a  party  to  an  action  can 
be  required  to  appear  in  obedience  to 
an  original  notice  at  any  other  time 
than  that  fixed  by  law.  The  author- 
ity to  prosecute  garnishee  proceed- 
ings is  entirely  statutory,  and  unless 
the  requirements  of  the  statute  are 


complied  with  the  proceedings  cannot 
be  sustained.  McDonald  v.  V'inette, 
58  Wis.  619,  17  N.  W.  319.  .  .  . 
The  summons  was  defective.  It  did 
not  comply  with  the  statute,  and 
the  judgment  thereupon  rendered, 
both  against  the  defendant  and  the 
garnishee  was  void  for  want  of  the 
jurisdiction  of  the  persons.  The  scire 
facias  was  issued  in  violation  of  the 
statute,  and  the  bank  was  under  no 
obligation  to  pay  attention  to  it.  The 
action  of  the  court  in  granting  the  in- 
junction restraining  the  enforcement 
of  the  judgment  was  proper  and  must 
be  affirmed." 

1.  Georgia. — Hart  v.  Lazaron,  46 
Ga.  396. 

Illinois. — Follansbee  v.  Scottish 
American  M.  Co.,  7  111.  App.  486. 

Nebraska. — Bankers'  L.  I.  Co.  v. 
Robbins,  53  Neb.  44,  73  N.  VV.  269. 

New  York. — Wilmore  v.  Flack,  96 
N.  Y.  512. 

Oregon. — Handley  v.  Jackson,  31 
Oreg.  552,  50  Pac.  915;  White  v.  Es- 
pey.  21  Oreg.  328.  28  Pac.  71. 

Tennessee. — Walker  v.  Wynne,  3 
Yerg.  62. 

Texas. — Cunningham  v.  Taylor.  20 
Tex.  126;  Maybin  v.  Fitzgerald  (Tex. 
Civ.  App.),  45  S.  W.  611. 


953 


§  C39       Against  Judgments;  General  Considerations. 

ment  must  be  shown  to  bo  inequitable,1*  that  the  party  against  whom, 
it  was  rendered  has  a  meritorious  defense,2  and  that  there  is  no 
adequate  remedy  at  law.3  So  equity  will  not  enjoin  a  judgment  at 
law  on  the  ground  of  a  want  of  jurisdiction  of  the  defendant,  there 
being  no  evidence  that  the  judgment  is  inequitable,  for  in  such 
a  case  the  error  could  have  been  cured  by  appeal  or  writ  of  error.4 
And  in  Missouri  it  is  decided  that  equity  will  not  enjoin  the 
enforcement  of  a  judgment  void  for  want  of  jurisdiction,5  for  in 
such  a  case  no  title  would  pass  to  an  execution  purchaser,  and  the 
judgment  debtor  would  have  an  adequate  remedy  at  law  by  an 
action  against  the  constable  or  other  officer  as  a  trespasser.6  And 
in  a  suit  to  enjoin  the  enforcement  of  a  judgment  rendered  twenty 
years  before,  it  has  been  decided  that  it  will  not  be  presumed  that 
tho  amount  involved  was  not  within  the  jurisdiction  of  the  Circuit 
Court,  where  the  declaration  contained  several  counts  which  to- 
gether claimed  a  greater  amount,  though  the  judgment  rendered 
was  for  less  than  the  jurisdictional  amount.7  Tho  principle  that  a 
judgment  by  a  court  without  jurisdiction  of  the  parties  and  the 
subject  matter  is  a  nullity  and  must  be  so  treated  by  other  courts 
whenever  it  is  presented  and  relied  on  applies  to  an  order  of  in- 
junction made  by  a  court  without  jurisdiction,  interposed  against 
an  application  for  mandamus.8 

§  639.  Default  judgments. — While  the  enforcement  of  a   de- 
fault judgment  may  be  enjoined  yet  it  is  generally  held  essential 

la.  Farwell     Co.     v.     Hilbert,     91  plete  and  efficient.     Bankers'  L.  I. 

Wis.  437,  65  N.  VV.  172,  30  L.  R.  A.  Co.  v.  Robbins,  53  Neb.  44,  73  N.  VV. 

235.  269.    See,  also,  §§  26a,  26b,  herein. 

2.  Bankers'   L.   I.   Co.  v.   Robbins,  4.  Virginia    v.     Dunaway,    17    111. 
53  Neb.  44,  73  N.  VV.  269.  App.  68. 

3.  St.    Louis    &    S.    F.    R.    Co.    v.  See    §    617    herein. 

Lowder,  138  Mo.  533,  39  S.  W.  799;  5.  St.  Louis  T.  M.  &  S.  Ry.  Co.  v. 

Bankers'  L.  I.  Co.  v.  Robbins,  53  Neb.  Reynolds,  89  Mo.  146,  1  S.  W.  208. 
44,  73  N.  W.  269.  6.  Sayre  v.  Tompkins,  23  Mo.  443; 

Wliere  remedy  of  certiorari  is  Deane  v.  Todd,  22  Mo.  90;    Bank  v. 

available  an    injunction   will   not  be  Meredith,  44  Mo.  500. 
granted.    San  Antonio  &  A.  P.  R.  Co.  7.  Hill  v.  Gordon,  45  Fed.  276. 

v.  Glass    (Tex.  Civ.  App.),  40  S.  VV.  8.  State  v.  Murray    (S.  C.  1908), 

339.  60  S.  E.  928. 

Remedy   at  law   mast  be   com- 

954 


Against  Judgments;  General  Considerations.       §639 

to  show  a  meritorious  defense  to  the  judgment,9  that  the  defendant 
was  guilty  of  no  fault  or  negligence  in  connection  with  the  rendi- 
tion of  such  judgment,  and  that  there  is  no  adequate  remedy  at 
law.  So  a  Code  provision  that  a  court  in  which  a  judgment  has 
been  entered  by  default  may,  on  motion,  reverse  it  for  any  error, 
is  held  to  furnish  an  adequate  remedy  at  law  against  a  judgment 
by  default,  and  a  bill  to  enjoin  it  cannot  be  maintained.10  And 
where  a  judgment,  valid  on  its  face,  was  rendered  against  one  per- 
son, who  was  never  served  with  summons,  and  never  appeared  in 
the  cause,  and  was  entered  against  another  by  default  before  the 
time  for  answering  had  expired,  they  must  show,  in  order  to  stay 
the  enforcement  of  the  judgment,  that  they  had  a  good  defense  to 
the  action  at  law,  and  the  averment  that,  at  the  time  of  the  entry 
of  the  judgment,  there  was  no  cause  of  action,  was  a  perfect  de- 
fense.11 And  where,  in  an  action  on  a  note  in  a  justice's  court, 
defendant  pleaded  the  statute  of  limitation,  but  did  not  appear  at 
the  trial,  execution  of  the  default  judgment  will  not  be  restrained.12 
Nor  will  the  enforcement  of  a  default  judgment  be  restrained 
where  it  was  taken  in  a  cause  of  action  arising  out  of  a  lottery 
transaction.13  But  equity  will  cancel  and  enjoin  the  enforcement 
of  a  judgment  by  default  rendered  by  a  justice  after  he  had  lost 


9.  Richardson  Drug  Co.  v.   Duna-  ski  v.  Bardonski,  144  111.  284,  33  N. 

gan,  8  Colo.  App.  308,  46  Pac.  227;  E.  39.    Where  a  judgment  is  entered 

Combs  v.  Hamlin  Wizard  Oil  Co.,  58  by  default  against  a  nonresident  de- 

111.  App.  123;  Hockaday  v.  Jones,  8  fendant,  who  has  not  been  personally 

Okla.    156,   56    Pac.    1054.      Compare  served    with    summons    within    this 

Mosher   v.    McDonald   &    Co.    (Iowa,  State,  the  court  has  power  to  set  it 

1906),    102   N.  W.   837.  aside  on  a  motion  in  the  same  action, 

9a.  Richardson  Drug  Co.  v.  Duna-  if  such  motion  is  made  within  a  rea- 

gan.   8  Colo.  App.  308,  46  Pac.  227;  sonable    time,     and    an    independent 

Bankers'    L.    I.    Co.    v.    Robbins,    53  action  need  not  be  brought.     Norton 

Neb.  44,  73  N.  W.  269;  Hockaday  v.  v.   Atchison,  T.   &   S.  F.  R.   Co.,   97 

Jones,  8  Okla.  156,  56  Pac.  1054.  Cal.  388,  32  Pac.  452. 

9b.  Hockaday    v.    Jones,    8    Okla.  11.  Harnish    v.    Bramer,    71    Cal. 

156,  56  Pac.  1054.  155,  11   Pac.  888. 

10.  Brown    v.    Chapman,    90    Va.  12.  Ivey  v.  McConnell    (Tex.  Civ. 

174,   17  S.  E.  855.     A  default  judg-  App.),  21   S.  W.  403. 

ment  is  not  enjoinable  because  of  at-  13.  Pacific  Debenture  Co.  v.  Cald- 

torney's  neglect  to  file  plea.    Bardon-  well,  147  Cal.  106,  81  Pac.  314, 

955 


§640       Aoainst  Judgments;  Cknikal  Considkpvtions. 

jurisdiction  by  an  unlawful  adjournment.14  And  an  injunction 
will  issue  to  restrain  the  enforcement  of  a  judgment  rendered  in 
a  justice's  court  by  default,  in  violation  of  an  agreement  between 
the  parties  that  the  case  should  not  be  called  for  trial  except  by 
consent,  where  it  appears  that  no  new  trial  can  be  had,  that  the 
amount  in  controversy  is  such  that  no  appeal  can  be  taken,  and 
that  there  is  a  valid  defense  to  the  action.10  Where  a  debtor,  who 
is  in  fact  only  a  surety,  on  being  Berved  in  an  action  against  the 
principal  debtor,  makes  default  on  being  assured  by  the  creditor 
that  he  is  already  secured  by  an  attachment,  and  does  not  intend 
to  pursue  him  or  look  to  him  for  any  portion  of  the  debt,  he  may 
enjoin  an  execution  issued  against  him  in  violation  of  such  stipu- 
lations.16 

§  640.  Default  through  neglect. — Where  a  party  has  been 
regularly  served  with  process  in  a  cause,  and  neglects  to  appear 
and  defend  the  suit,  but  suffers  judgment  to  be  taken  by  default, 
and  he  has  not  been  prevented  from  making  a  defense  by  fraud 
or  accident,  unmixed  with  negligence  on  his  part,  a  court  of  equity 
will  not  afford  him  any  relief  against  the  judgment.11  So  a  peti- 
tion to  enjoin  the  sale  of  land  under  an  execution,  which  avers  that 

14.  Iowa  Union  Tel.  Co.  v.  Boylan,  '  where  a  party  has  been  regularly 
8G  Iowa,  90,  52  N.  VV.  1122.  And  see  served  with  process  and  neglects  to 
Crandall  v.  Bacon,  20  Wis.  639;  appear  and  defend,  and  suffers  judg- 
Br/>wn  v.  Kellogg,  17  Wis.  475.  ment  to  be  taken  by  default,  and  has 

15.  Gulf,  etc.,  R.  Co.  v.  King.  80  not  been  prevented  from  making  a 
Tex.  681,  16  S.  W.  641;  Gulf,  C.  &  defense  by  fraud  or  accident,  un- 
S.  F.  Ry.  Co.  v.  Rawlins,  80  Tex.  mixed  with  negligence  on  his  part,  a 
679,  16  S.  W.  430;  Bryorly  v.  Clark,  court  of  equity  will  not  afford  him 
48  Tex.   345.  any     relief    against     the     judgment, 

16.  Kelley  v.  Kriess,  68  Cal.  210,  though  it  may  be  unjust.'  The  alle- 
9  Pac.  129.  gations  in  reference  to  the  failure  of 

17.  Hoey  v.  Jackson.  31  Fla.  541,  the  attorney  to  appear  for  defendants 
13  So.  459,  per  Mabry,  J.:  "As  ap-  in  the  ejectment  suit  are  insufficient, 
pears  from  the  bill,  an  opportunity  In  the  first  place,  such  a  failure  is  in 
was  given  to  make  this  defense,  as  a  no  way  attributable  to  Jackson,  and, 
summons  in  said  suit  was  regularly  at  most,  would  be  the  neglect  of  their 
issued,  and  properly  served  upon  the  own  agent.  Shepard  v.  Akers.  3  Tenn. 
defendants.  In  Railroad  Co.  v.  Hoi-  Ch.  215.  But  it  does  not  appear  that 
brook,  92  111.  297,  it  was  held  that  any  attorney  was  consulted  after  suit 

056 


Against  Judgments  ;  General  Consideeations.       §  641 

the  judgment  was  rendered  in  violation  of  an  agreement  between 
the  attorneys  of  the  parties  that  the  same  should  be  taken  for  a 
less  amount,  is  fatally  defective  if  it  does  not  show  authority  in 
the  attorneys  to  make  the  agreement.  Such  a  petition  must  not 
only  show  that  petitioner  was  not  guilty  of  neglect  in  permitting 
the  judgment  to  go  by  default,  but  also  that  it  is  inequitable  and 
unjust  to  permit  it  to  be  enforced.18  And  one  cannot  ask  that  the 
collection  of  a  judgment  against  him  be  enjoined,  where  his  omis- 
sion to  defend  was  caused  by  his  being  misled  by  the  clerk  as  to  the 
character  of  the  suit.19 


§641.  Same  subject;  in  Mississippi  and  Texas. — In  Missis- 
sippi it  is  decided  that  where  a  judgment  is  rendered  by  default 
without  service  of  process,  in  orde*  to  obtain  relief  in  equity,  de- 
fendant must  show  not  only  want  of  service,  but  that  he  has  a  good 
defense  to  the  action.20  And  in  Texas  it  is  decided  that  where  a 
party  seeks  to  enjoin  a  judgment  rendered  against  him,  he  must 


was  instituted,  and  the  mere  fact  that 
copy  of  summons  was  sent  to  the  at- 
torney who  had  previously  been  con- 
sulted does  not  show  sufficient  dili- 
gence. It  is  not  even  alleged  that  the 
attorney  received  the  copy  of  sum- 
mons, or  knew  that  the  suit  had  been 
instituted.  The  allegations  of  the 
bill  fail  to  show,  we  think,  any  suf- 
ficient reason,  in  law,  why  complain- 
ants did  not  make  their  defense  at 
law." 

See,  also,  Richardson  Drug  Co.  v. 
Dungan,  8  Colo.  App.  308,  46  Pac. 
227;  Hockaday  v.  Jones,  8  Okla.  156, 
56   Pac.    1054. 

18.  Anderson  v.  Oldham,  82  Tex. 
228,  18  S.  W.  557;  Freeman  v.  Mil- 
ler, 53  Tex.  377;  Hair  v.  Labuzan, 
19  Ala.  224. 

19.  Hanna  v.  Morrow,  43  Ark.  107. 

20.  Newman  v.  Taylor,  69  Miss. 
670,  13  So.  831,  per  Cooper,  J.: 
"  The  appellee,  against  whom  a  judg- 
ment at  law  had  been  rendered  with- 


out notice,  could  have  secured  relief 
by  motion  in  the  law  court,  upon  the 
trial  of  which  it  would  only  have  de- 
volved on  him  to  show  that  no  ser- 
vice of  process  had  been  made  on 
him.  Meyer  v.  Whitehead,  62  Miss. 
387.  Instead  of  resorting  to  the 
court  of  law,  he  has  applied  to  chan- 
cery for  relief,  and,  being  in  a  court 
of  equity,  finds  himself  subjected  to 
the  operation  of  the  equitable  maxim 
that  '  he  who  seeks  equity  must  do 
equity,'  by  reason  of  which  it  was  in- 
cumbent on  him  to  show,  not  only 
that  the  judgment  at  law  was  void, 
but  that  he  has  a  good  defense  to  the 
suit.  Stewart  v.  Brooks,  62  Miss. 
492.  Under  the  old  practice  in  chan- 
cery, the  rule  was  to  award  a  new 
trial  at  law,  but  since  the  extension 
of  the  power  of  relief  in  courts  of 
law  this  jurisdiction  has  become 
practically  obsolete.  3  Pom.  Eq.  Jur., 
1365.  Courts  of  equity  yet  relieve 
against  judgments  obtained  by  fraud, 


957 


§  C42       Against  Judgments;  General  Considerations. 

show  that  hirf  failure  to  answer  was  not  attributable  to  his  own 
omission,  neglect  or  default,  and  that  he  has  a  good  defense  to  the 
•  ntire  cause  of  action,  or  to  such  part  of  it  as  he  proposes  by  his 
petition  to  litigate.  It  is  not  enough  to  show  that  he  was  not  guilty 
of  neglect  in  permitting  the  judgment  to  go  by  default,  but  he 
must  also  show  that  it  u  inequitable  to  permit  it  to  be  enforced.21 

§  042.  Where  default  judgment  only  irregular;  where  void. — 
A  judgment  rendered  without  service  of  notice,  or  other  process 
required  by  law,  is  held  to  be  void  for  want  of  jurisdiction  in  the 
court  rendering  it,  and  will  be  set  aside  and  process  on  it  enjoined.28 
And  such  a  judgm<  at,  bring  absolutely  void,  it  seems  that  the  judg- 
ment debtor  may  restrain  its  enforcement  without  showing  that  he 
is  not  indebted  to  the  party  obtaining  it,  for  otherwise  a  void  judg- 
ment would  be  prima  fan*  evidence  of  indebtedness.23  But  where 
in  an  action  'before  a  justice,  before  the  time  for  entering  an  ap- 
pearance had  elapsed,  defendant  came  in,  found  no  one  present, 
and  after  the  expiration  of  the  time  went  away  and  paid  do  further 
attention  to  the  case,  and  later  the  justice  entered  judgment  by 
default,  it  was  held,  that  defendant's  remedy  was  by  appeal  or 
writ  of  error,  and  that  he  could  not  obtain  an  injunction  to  restrain 
the  enforcement  of  the  judgment,  which,  though  irregular,  was  not 
void.24 

accident,  or  mistake.     This   relief   ia  Givens    v.    Campbell,    20    Iowa     80- 

not  now  by  granting  a  new  trial  at  Connell  v.  Stelson,  33  Iowa,  149. 
law,  but  the  court  of  equity  will  take  See  §  631   herein, 

full  and  final  jurisdiction,  so  as  to  do  23.  Arnold    v.    Hawley,    67    Iowa, 

complete  justice  between  the  parties.  313,    315,    25    N.    W.    259.      And    see 

Hale  v.  Bozeman.  60  Miss.  965.     The  Dady    v.    Brown.    76    Iowa,    529,    41 

complainant   was   entitled    to     relief  N.  VV.  209;  State  Insurance  Company 

only  upon  condition  of  showing  that  v.   Waterhouse,   78   Iowa,  674,  43  N. 

he   had   a  valid   defense   against   the  W.  611. 

claim    on    which    the    judgment    was  24.  Central  Iowa  Ry.  Co.  v.  Pier- 
rendered."  sol,    65    Iowa,    498,    22    N.    W.    648; 

21.  Anderson  v.  Oldham,  82  Tex.  Cory  v.  King,  49  Iowa,  365.  And  see 
228,  231,  18  S.  W.  557;  Freeman  v.  as  to  appeal  or  writ  of  error  in  such 
Miller,  53   Tex.   377.  a  case,  Ryan  v.  Varga,  37  Iowa,  78; 

22.  Iowa  Un.  Tel.  Co.  v.  Boylan,  Dishon  v.  Smith,  10  Iowa,  212;  Mor- 
86  Iowa,  90,  52  N.  W.  1122;  Gerrish  row  v.  Weed,  4  Iowa,  77;  Cooper  v. 
v.  Hunt,  66  Iowa,  683,  24  N.  W.  274;  Sunderland,  3  Iowa,  114. 

958 


Against  Judgments;  General  Considerations.        §§  643,  644 

§  643.  Enjoining  confessed  judgments. — If  a  judgment  is  con- 
fessed with  the  agreement  that  it  is  not  an  ascertainment  of  so 
much  actual  indebtedness,  but  only  a  security  for  so  much  as 
might  thereafter  be  ascertained  to  be  due,  equity  will  prevent  the 
judgment  from  being  used  for  a  different  purpose.25  Where  a 
judgment  is  collusively  confessed,  for  the  purpose  of  defeating  a 
prior  judgment,  and  of  protecting  the  judgment  debtor's  property 
from  his  creditors,  the  owner  of  the  prior  judgment  may  have  the 
execution  of  the  confessed  judgment  restrained.26  And  where  a 
note  given  by  trustees  of  a  religious  society,  in  the  corporate 
name,  to  persons  who  had  a  claim  against  the  society,  included 
also  the  amount  of  certain  suspicious  claims  in  favor  of  the  trus- 
tees against  the  society,  it  was  held  to  be  affected  with  fraud, 
and  that  the  society  could  enjoin  the  enforcement  of  a  judgment 
entered  on  the  note  under  a  warrant  of  attorney.27  But  where  a 
creditor  enjoined  a  confessed  judgment  on  the  ground  of  fraud,  and 
then  proceeded  to  recover  judgment  against  the  debtor  and  issue 
execution,  his  injunction  was  dissolved  because  he  refused  to  make 
his  election  between  his  legal  and  equitable  remedies.28 

§  644.  Same  subject. — An  action  will  not  lie  to  enjoin  an 
execution  sale  and  to  compel  the  performance  of  a  verbal  agree- 
ment to  stay  execution  for  a  year,  in  consideration  of  confession 
of  judgment,  where  it  appears  that  complainant  is  guilty  of  laches 
in  not  resorting  to  his  adequate  and  speedy  legal  remedy  by  motion 
to  set  aside  the  execution  and  stay  all  other  process  until  the  ex- 
poration  of  the  year  agreed  upon.29    As  between  the  parties  thereto, 

25.  Keighler  v.  Savage  Mfg.  Co.,  which  has  been  properly  pleaded,  and 
12  Md.  383.  the  confession  is  made  by  one  who  is 

26.  Oakley  v.  Young,  6  N.  J.  Eq.  not  the  defendant's  attorney,  he  be- 
453  ing  absent  from   court,   and   the  de- 

27.  United  Brethren  Church  v.  fendant  himself  being  unable  to  at- 
Vandusen,  37  Wis.  54.  And  see  tend,  on  account  of  both  mental  and 
Brown  v.  Parker,  28  Wis.  21;  bodily  affliction,  and  there  is  mani- 
Huebschman  v.  Baker,  7  Wis.  542.  fest  equity  set  up  to  the  debt,  a  per- 

28.  Livingston  v.  Kane,  3  Johns.  petual  injunction  may  be  granted 
Ch  (NY.)  224.  Where  a  judgment  against  the  scire  facias  to  enforce  it. 
is  confessed  upon  a  note  barred  upon  Cheek  v.  Taylor,  22  Ga.  127. 

its  face  by  the  statute  of  limitations,  29.  Moulton    v.    Knapp,    85    Cal. 

959 


§045        Against  Judgments;  General  Considerations. 

a  judgment  upon  a  warrant  of  attorney  to  secure  a  contingent 
liability  is  not  void,  nor  will  it  be  set  aside,  nor  its  collection 
restrained  because  the  plaintiffs  affidavit  annex  d  to  the  complaint 
is  defective;30  but  if  the  warrant  of  attorney  was  improperly  ob- 
tained and  the  judgment  defendant  had  no  remedy  against  the 
judgment  in  a  court  of  law,  jurisdiction  in  equity  could  be  main- 
tained.31 Where,  without  fraud  on  the  part  of  plaintiff,  the 
defendant  confesses  judgment  with  full  knowledge  of  the  fact3 
connected  with  it,  he  is  estopped  from  setting  up  any  defense  to 
the  debt  which  existi  d  anterior  to  the  confession,  and  has  no 
standing  in  equity  to  ask  that  the  judgment  be  enjoined,  except  on 
some  equity  arising  subsequently  to  the  confession.32  Nor  can 
a  dtbtor  enjoin  the  enforcement  of  a  judgment  which  he  has  con- 
!'  ssed  by  way  of  compromise,  for  an  amount  smaller  than  that 
claimed  by  the  creditor;33  nor  upon  the  ground  that  the  cause  of 
action  was  barred  by  the  statute  of  limitations;34  nor  where  the 
judgment  was  entered  on  the  authorized  consent  of  the  defendant's 
attorney.35 

§  645.  Chancery  jurisdiction  over  judgments  at  law. — Equity, 
once  having  jurisdiction  in  a  case,  such  as  a  bill  for  partition  of 
land,  and  to  have  a  contract  respecting  other  land  specifically 
enforced,  may,  as  an  incident  to  the  relief  granted,  enjoin  the 

385,   24    Pac.   803.     And  see   Ede   v.  indebtedness  arose.     Miller  v.  Earle, 

Hazen,  61  Cal.  360;  Imlay  v.  Carpen-  24  N.  Y.  110;  Neusbaum  v.  Keim,  24 

tier    14  Cal.  173.  N.    Y.    325;    Hopkins    v.    Nelson,    24 

30.  Reiley    v.    Johnston,   22   Wis.  N.  Y.  518."     Technical   informalities 

279,  per  Cole,  J. :     "  If  the  statement  in   a  judgment  on  confession   should 

was    defective,    this    did    not    render  be  cured  in  courts  of  law.     Shedd  v. 

the  judgment    void    as    between  the  Brattleboro  Bank,  32  Vt.  70!),  716. 

parties  thereto.     As  to  third  persons,  31.  Truett   v.    Wainwright,    9    111. 

whose  rights  have  attached  by  a  judg-  418. 

ment.   or   by   foreclosure  of,  or  of   a  32.  Moore  v.  Barclay,  23  Ala.  739. 

lien  on  property  affected  by  the  con-  33.  Morehead  v.  DeFord,  6  W.  Va. 

fessed   judgment,    it   might,   perhaps,  316. 

be  set  aside  for  that  reason.    But  the  34.  Harner   v.    Price,    17    W.   Va. 

judgment  would  be  good  as  between  523. 

the  parties,  though  the  statement  on  35.  King   v.   Watts,   23   La.   Ann. 

which  it  is  founded  does  not  specifl-  563. 
cally  state  the  facts  out  of  which  the 

960 


Against  Judgments  ;  General  Considerations.       §  646 

enforcement  of  a  judgment  at  law  rendered  in  an  action  which 
might  have  been  successfully  defended  at  law.36  In  Maryland  it 
has  been  held  that  the  court  of  chancery  may  enjoin  the  enforce- 
ment of  a  decree  of  the  Court  of  Appeals  which  has  been  already 
satisfied.37 

§  646.  Same  subject ;  in  other  States. — The  County  Court,, 
under  the  Illinois  statute  relating  to  general  assignments,  was 
given  no  jurisdiction  of  a  suit  by  creditors  to  enjoin  the  sheriff 
from  paying  the  proceeds  of  certain  executions  to  the  plaintiffs 
therein,  on  the  ground  that  the  judgments  on  which  they  were 
issued  were  fraudulently  confessed  by  the  debtor,  in  contemplation 
of  an  assignment,  since  such  property  is  not  in  the  possession  of  the 
court,  but  held  adversely  by  the  sheriff  ;38  and  in  such  a  case  a  court 
of  equity  has  jurisdiction,  and  its  intervention  is  indispensable 
for  the  protection  of  creditors'  rights  on  the  assignee  refusing  to 
act.39  In  Virginia  it  has  been  decided  that  a  judge  of  a  County 
Court  may  enjoin  an  execution  which  is  to  take  effect  in  his  county 
or  district,  for  as  the  county  judges  are  required  to  reside  within 
their  respective  counties  or  districts,  they  are  more  accessible  to 
suitors  than  judges  of  the  Circuit  Courts.40    In  Kansas,  under  the 

36.  McDowell    v.    McDowell,    114  498;  Stratton  v.  Allen,  16  N.  J.  Eq. 
111.  255,  2  N.  E.  56.  229;   Doughty  v.  Doughty,  27  N.  J. 

37.  McClellan  v.  Crook,  4  Md.  Ch.  Eq.  315,  28  N.  J.  Eq.  581;  Railroad 
(Johnson)  398.  In  First  Bap.  Church  Co.  v.  Titus,  28  N.  J.  Eq.  269;  Me- 
of  Hoboken  v.  Syms,  51  N.  J.  Eq.  363,  chanics'  Nat.  Bank  v.  Burnet  Mfg. 
28  Atl.  461,  McGilLCh.,  said:  "This  Co.,  33  N.  J.  Eq.  486;  Cutter  v. 
court  cannot  sit  in  judgment  upon  Kline,  35  N.  J.  Eq.  534;  Herbert  v. 
the  lawful  acts  of  other  tribunals,  Herbert,  49  N.  J.  Eq.  70,  22  Atl.  789; 
and  review  the  conduct  of  those  tri-  S.  C.  49  N.  J.  Eq.  566,  25  Atl.  366. 
bunals,  to  see  whether  in  the  exercise  As  to  enjoining  execution 
of  their  rightful  powers  they  have  where  judgment  paid  or  satis- 
committed  error,  either  in  law  or  in  fied,  see  §  625  herein. 

fact;    but   its    power   to   give   relief  38.  Lindauer  v.  Lang,  29  111.  App. 

against  a  judgment  which  has  been  188. 

procured  by  fraud  or  imposition  upon  39.  Preston  v.  Spaulding,  120  111. 

another  court  is  beyond  all  question.  208,  214,  10  N.  E.  903;  Second  Nat. 

Glover  v.  Hedges,  1   N.  J.  Eq.   119;  Bank  v.  English,  21  111.  App.  317. 

Boulton  v.   Scott.  3  N.  J.  Eq.  236;  40.  Rosenberger  v.  Bowen,  84  Va. 

Tomkins  v.  Tomkins,  llN.J.Eq.  512;  660,  5  S.  E.  697. 
Reeves  v.  Cooper,  12  N.  J.  Eq.  223 

961 
61 


§  647       Against  Judgments  ;  General  Considerations. 

statute,  a  final  judgment  against  a  garnishee  cannot  legally  be 
rendered  by  a  justice  of  the  peace;  if  it  is  rendered,  and  an  execu- 
tion issued  on  it,  the  enforcement  of  the  execution  will  be  enjoined, 
as  the  judgment  is  utterly  void/1 

§  647.  Same  subject  continued. — In  Ohio,  it  is  deemed  to  be 
settled  doctrine,  that  when  courts  of  equity  have  once  been  vested 
with  jurisdiction  to  enjoin  judgments,  they  retain  it  if  not  ex- 
pressly taken  from  them  by  statute,  though  courts  of  law  subse- 
quently have  jurisdiction  conferred  upon  them.42  The  more 
appropriate  remedy  whore  an  ex>  cut  ion  has  been  erroneously  issued 
is  by  application  to  the  court  from  which  it  issues  to  set  it  aside. 
But  where  the  execution  has  been  Benl  to  another  county,  and 
suit  brought  there  to  enjoin  its  enforcement,  the  injunctive  relief 
may  be  granted  if  the  execution  creditor  appears  and  answers  to 
the  merits  without  making  objection  to  the  jurisdiction  or  mode 
of  proceeding.43  In  some  States,  jurisdiction  has  been  maintained 
to  enjoin  the  execution  of  a  judgment  which  has  been  paid,  though 
the  complainant  could  have  the  execution  set  aside  by  motion  in 
the  court  issuing  the  execution.44  In  a  case  in  New  York  where 
plaintiff  sued  defendant  in  the  Supreme  Court  for  damages  for 
breach  of  a  contract  to  sell  goods,  and  defendant,  after  appearing 
in  the  action,  sued  plaintiff  in  the  court  of  common  pleas  of  New 
York  city  and  county  for  a  balance  alleged  to  be  due  on  the  pur- 
chase price  of  the  goods  sold,  and  recovered  judgment  by  default, 
it  was  held  that,  even  if  judgment  had  not  been  entered  in  the 
court  of  common  pleas,  or  even  if  the  judgment  were  irregular 
for  want  of  service,  the  Supreme  Court  had  no  power  to  restrain 
defendant  from  proceeding  in  that  court,  except,  perhaps,  in  an 
independent  action  in  equity.45    In  such  a  case  the  common  pleas 

41.  Missouri  Pacific  Ry.  Co.  v.  43.  Miller  v.  Longacre,  26  Ohio  St. 
Reid,  34  Kan.  410,  8  Pae.  846;  Cham-  291.  And  see  Nicholson  v.  Pim,  5 
bers  v.  Bridge  Mfg.  Co.,  16  Kan.  270;  Ohio  St.  25;  Rees  v.  Smith,  1  Ohio, 
McNeill  v.  Edie,  24  Kan.  108;  Mas-  124. 

tin  v.  Gray,  19  Kan.  461;    Earle  v.  44.  Miller    v.    Longacre,    26    Ohio 

McVeigh,    91    U.   S.   503,   505,  23   L.  St.  291.  297;  Crawford  v.  Thurmond, 

Ed.   398.  3  Leigh    (Va.),  85. 

42.  Long  v.  Mulford,  17  Ohio  St.  45.  Bradley  Salt  Co.  v.  Keating, 
484.  61  Hun,  251,  16  N.  Y.  Supp.  795. 

962 


Agaixst  Judgments;  General  Considerations.       §§648,649 

court  should  have  been  moved  to  correct  or  vacate  its  own  judg- 
ment.46 

§  648.  Statutory  jurisdiction;  California,  etc. — In  California 
it  has  been  decided  that  one  court  has  no  jurisdiction  to  enjoin 
execution  of  the  judgments  of  another  court  of  co-ordinate  juris- 
diction, unless  the  latter  court  is  unable,  by  reason  of  its  jurisdic- 
tion, to  afford  the  relief  sought,47  and  that  one  District  Court  has 
no  jurisdiction  to  enjoin  the  execution  of  a  judgment  of  another 
District  Court;48  or  to  enjoin  the  prosecution  of  an  action  pending 
in  another  District  Court.49  And  the  fact  that  the  judge  of  the 
court  where  the  judgment  sought  to  be  enjoined  was  rendered  is 
disqualified  from  sitting  in  the  case,  does  not  constitute  an  excep- 
tion to  the  rule.50  And  in  Wisconsin,  one  Circuit  Court  will  not 
restrain  the  enforcement  of  a  judgment  whether  for  legal  or  equit- 
able relief  rendered  in  another  Circuit  Court.51  And  a  judgment 
or  decree  in  equity  cannot  be  enjoined  in  a  second  suit  in  equity, 
whether  the  second  suit  be  brought  in  the  same  or  another  court, 
either  by  a  party  or  by  a  stranger  to  the  first  suit.52  And  a  Circuit 
Court  has  no  power  to  restrain  the  execution  of  a  writ  of  assistance 
awarded  upon  a  judgment  of  the  County  Court  of  that  county, 
they  being  courts  of  co-ordinate  jurisdiction.53 

§  649.  Same  subject;  Indiana,  Kentucky,  etc. — Under  the 
Indiana  statute  authorizing  an  action  to  review  a  judgment  for 

46.  New  York,  etc.,  R.  Co.  v.  sale  of  certain  property  which  had 
Haws,  56  N.  Y.  175.  heen  wrongfully  levied. 

47.  Anthony  v.  Dunlap,  8  Cal.  27;  49.  Judson  v.  Porter,  51  Cal.  562. 
Rickett  v.  Johnson,  8  Cal.  35;  Chip-  50.  Flaherty  v.  Kelly,  51  Cal. 
man  v.  Hibbard,  8  Cal.  270;  Gorham  145. 

v    Toomey,   9   Cal.   77;    Uhlfelder  v.  51.    Orient  Ins.    Co.    v.    Sloan,    70 

Levy,    9    Cal.    614;    Hockstacker    v.  Wis.   611,  36  N.  W.  388.      The  rule 

Levy^  11  Cal.  76.  was  applied  to  a  judgment  in  equity 

48.  Crawley  v.  Davis,  37  Cal.  268;  rendered  by  another  court  in  Platto 
Flaherty  v.  Kelly,  51   Cal.    145.     In  v.    Deuster,    22    Wis.   482.      And    see 
Crowley  v.   Davis,  supra;   Pixley   v.  Wood  v.  Lake,  13  Wis.  84. 
Huggins,  15  Cal.  127,  is  distinguished  52.   Endter    v.    Lennon,    46    Wis. 
as  a  case  where  not  the  execution  of  299,  50  N.  W.  194. 

the  judgment  waB  enjoined,  but  the  53.  Platto  v.  Deuster,  22  Wis.  482. 

963 


§650       Against  Judgments;  General  Considerations. 

error  of  law  appearing  in  the  proceeding  or  judgment,  or  for  ma- 
terial new  matter  discovered  since  the  rendition  of  the  judgment, 
fraud  or  irregularity  of  the  clerk  or  sheriff,  after  judgment,  in 
altering  the  entry  of  it,  or  in  connection  with  issuing  the  execu- 
tion or  making  the  levy,  cannot  be  reviewed,  but  the  appropriate 
remedy  is  to  enjoin  a  levy  and  sale.54  The  provision  of  the  Ken- 
tucky Code  that  "  an  injunction  to  stay  proceedings  on  a  judgment 
shall  not  be  granted  in  an  action  brought  by  the  party  seeking  the 
injunction  in  any  other  court  than  that  in  which  the  judgment 
was  rendered,"  applies  to  all  parlies  who  seek  to  stay  such  pro- 
ceedings as  well  as  to  the  party  against  whom  the  judgment  was 
rendered,  and  under  this  provision  the  Louisville  chancery  court 
has  no  jurisdiction  to  enjoin  proceedings  on  a  judgment  of  the 
Jefferson  court  of  common  pleas.00  And  the  Circuit  Court  has  no 
jurisdiction  to  enjoin  an  execution  issued  upon  a  judgment  ren- 
dered by  a  justice  of  the  peace.58  Under  the  Tennessee  statutes 
of  1829  and  1831,  a  judgment  against  an  administrator  or  execu- 
tor within  six  months  after  their  qualification,  and  an  execution 
issued  within  less  than  twelve  months,  cannot  be  enjoined  by  a 
court  of  equity.57  And  in  Iowa  the  similar  rule  exists  that  a  suit 
to  enjoin  proceedings  in  an  action  or  upon  a  judgment  must  be 
brought  in  the  county  and  court  in  which  the  action  is  pending 
or  the  judgment  was  obtained.58 

§  650.  Jurisdiction  to  enjoin  Federal  judgments. — It  is  no 
reason  for  enjoining  a  judgment  regularly  recovered  at  law  in  a 
Federal  court,  that  the  record  therein  fails  to  show  that  the  citizen- 
ship of  the  assignor  of  the  plaintiff  therein  was  such  as  to  give 
the  court  jurisdiction,  for  judgments  of  Federal  courts,  rendered 
upon  personal  service,  are  valid  until  reversed,  even  if  the  record 
fails  to  show  the  facts  on  which  jurisdiction  rests.59 

54.  Ferguson    v.    Hull,     136    Ind.      Davis  v.  Davis,  10  Bush    (Ky.)   274. 
399,  36  N.  E.  254.  57.     Roche      v.      Washington,      7 

55.  Mallory  v.  Dauber,  83  Ky.  239.       Humph.    (Tenn.)    142. 

See  Nairin  v.  Kentucky  Heating  Co.,  58.   Anderson    v.    Hall,    48    Iowa, 

27  Ky.  Law  Rep.  551,  86  S.  W.  676.  346. 

56.  Chesapeake,  O.  &  S.  W.  R.  Co.  59.  Skirving  v.  National  Life  Ins. 
v.  Reasor,  84  Ky.  369,  2  S.  W.  599;  Co.,  8  C.  C.  A.  241,  59  Fed.  742,  per 

964 


Against  Judgments  ;  General  Considerations. 


651 


§  651.  Enjoining  process  as  between  State  and  Federal  courts. 
— In  accordance  with  the  rule  that  as  between  State  and  Federal 
courts  of  co-ordinate  jurisdiction,  the  tribunal  first  acquiring 
jurisdiction  retains  it,  and  that  one  of  such  courts  cannot  enjoin 
the  process  of  another,  it  has  been  held  in  Rhode  Island  that  the 
Supreme  Court  of  that  State  cannot  enjoin  the  United  States 
marshal  from  proceeding  to  a  sale  on  execution  under  a  decree  in 
equity  of  the  Federal  Circuit  Court.60 


Caldwell,  J. :  "  It  does  not  appear 
from  the  complaint  and  record  in  the 
law  case  that  the  citizenship  of  the 
assignors  of  these  orders  was  such  as 
would  have  enabled  them  to  main- 
tain a  suit  thereon  in  the  Circuit 
Court,  and  it  is  urged  that  for  this 
reason  the  court  rendering  the  judg- 
ment was  without  jurisdiction,  and 
the  judgment  void.  There  are  two 
answers  to  this  contention:  The 
bill  does  not  challenge  the  jurisdic- 
tion of  the  court  rendering  the  judg- 
ment; but  if  it  did,  it  is  well  set- 
tled that  the  judgments  and  decrees 
of  the  United  States  courts  rendered 
upon  personal  service  on  the  de- 
fendant are  binding  until  reversed, 
though  no  jurisdiction  be  shown  on 
the  record.  If  the  record  fails  to 
show  the  facts  on  which  the  jurisdic- 
tion rests — as,  for  instance,  that  the 
plaintiff  and  the  defendants  are  citi- 
zens of  different  States;  or,  where 
the  plaintiff  sues  as  assignee,  that 
his  assignor  might  have  maintained 
the  suit — the  judgment  may  be  re- 
versed for  error  upon  a  direct  pro- 
ceeding for  that  purpose,  but  it  is 
not  void,  and  cannot  be  attacked  col- 
laterally. McCormick  v.  Sullivant, 
10  Wheat.  192.  6  L.  Ed.  300;  Des 
Moines  Nav.  &  R.  Co.  v.  Iowa  Home- 
stead Co.,  123  U.  S.  553,  8  Sup.  Ct. 
Rep.  217,  31  L.  Ed.  202;  In  re  Saw- 


yer, 124  U.  S.  200,  220,  221,  8  Sup. 
Ct.  Rep.  482,  31   L.   Ed.   402." 

Compare  Broadis  v.  Broadis,  86 
Fed.  951;  Andes  v.  Millard,  70  Fed. 
515. 

GO.  Chapin  v.  James,  11  R.  I.  86, 
per    Potter,  J.:       "The   suit   was   in 
equity  and  might  have  been  brought 
either    in    the    United    States    or    the 
State  court;  and  it  is  a  principle  too 
well  settled  to  need  authority  that  in 
such  a  case  the  court  which  first  ac- 
quires   jurisdiction    is    to    retain    it, 
and  is  not  to  be  interfered  with  by 
any  other  co-ordinate  court,  and  that 
property   in   possession   of  officers   of 
the    court    is    in    possession    of    the 
court,  and  cannot  be  levied  on  by  of- 
ficers  under   authority   of   any  other 
co-ordinate    court,   whether    State    or 
Federal.      Hagan    v.    Lucas,    10  Pet. 
400,   9  Ed.  470;    Wallace  v.  McCon- 
nell,  13  Pet.  136,  10  L.  Ed.  95;  Smith 
v.  Mclver,  Wheat.  532,  6  L  Ed.  152; 
Mallett    v.    Dexter,    1     Court.     178; 
Buck   v.   Colbath,   3   Wall.    334,   341, 
18  L.  Ed.  257.     ...     As  between 
State  and  Federal  courts,  it  is  well 
settled  that  as  a  general  rule  neither 
can  enjoin  the  process  of  the  other. 
Diggs  v.  Wolcott,  4  Cranch,  179,  2  L. 
Ed.  Ed.   587;   McKim  v.  Voorhies,   7 
Cranch,  279,  3  L.  Ed.   342;   Peck  v. 
Jenness.    7    How.    (U.   S.)    612,   625, 
12  L.  Ed.  841;  City  Bank  v.  Skelton, 


965 


§§  652,  653        Against  Judgments;  General  Considerations. 

§  652.  Parties. — In  an  action  to  enjoin  a  judgment  in  eject 
ment  and  to  quiet  the  title  of  purchasers  acquired  under  a  trust 
deed,  it  is  not  necessary  to  join  as  a  defendant  tin  ir  vendor,  who 
was  also  grantor  in  the  deed  of  trust.61  And  in  an  action  to  enjoin 
a  judgment  which  has  been  assigned,  the  general  rule  is  that  the 
assignee  is  the  only  necessary  party  defendant,  as  he  took  it  sub- 
ject to  all  the  equities  existing  at  the  time  of  the  assignment.62 
In  an  action  brought  to  restrain  the  collection  of  the  county  attor- 
ney's commissions  on  a  judgment  for  a  fine  which  the  governor 
has  remitted,  the  State  has  no  real  inti  rest  and  is  not  a  proper 
party  defendant;  but  the  county  attorney  and  the  sheriff  charged 
with  the  execution  are  the  only  proper  parties  defendant.63  Gen- 
erally, however,  a  judgment  will  not  be  perpetually  enjoined, 
unless  all  the  parties  in  whose  favor  it  was  rendered  are  joined  as 
defendants  and  have  answered.64  In  actions  to  enjoin  the  enforce- 
ment of  a  judgment,  as  in  other  actions  in  equity,  the  complainant 
must  be  the  real  party  in  interest.65  And  generally  no  person  can 
enjoin  a  judgment  to  which  he  is  not  a  party  or  privy.66  A 
stranger  to  a  judgment  cannot  enjoin  it  because  of  alleged  error 
in  its  rendition,  nor  have  it  reopened  in  order  to  afford  him  an 
opportunity  of  showing  error.67 

§  653.  Parties  continued. — It  has  before  been  shown  that  an 
injunction  to  stay  proceedings  and  process  at  law  must  go  against 
the  parties  at  whose  instance  they  were  instituted,  and  not  merely 
against  the  sheriff  or  other  officer  acting  therein  in  aid  of  a  party.65 
The  legal  and  equitable  owners  of  a  judgment  may  join  in  a  bill 

2    Blatchf.   26;    Brasks  v.   Montgom-  (U.  S.)    313,  5  L.  Ed.  97.     See  Gre- 

ery.     23     La.     Ann.     450;     Kendall  mand  v.  Gremand   (La.  1005),  38  So. 

v.    Winsor.    6    R.    I.    453;    Coster    v.  901. 

Griswold,  4  Edw.  Ch.  3G4,  377;  Eng-  65.   Dunn  v.   Baxter,    30    W.    Va. 

lish  v.  Miller,  2  Rich.  Eq.  320."  672,  5  S.  E.  214;   Barr  v.  Clayton,  29 

61.  Johnson   v.   Christian,    128   U.  W.  Va.  256,  11  S.  E.  899.    See  §§  345- 
S.  374,  9  S.  Ct.  87,  32  L.  Ed.  412.  347,  ante. 

62.  Ellis  v.  Kerr   (Tex.),  23  S.  W.  66.  Jordan    v.    Williams,  3   Rand. 
1050.  (Va.)   501. 

63.  Smith  v.  State  (Tex.),  9  S.  W.  67.  Mayes  v.  Woodall,  35  Tex.  687. 
274.     See  §§  366,  367,  ante.  68.  Sections  366,  367,  ante. 

64.  Marshall  v.  Beverley,  5  Wheat. 

966 


Against  Judgments;  Geneeal  Considerations.       §654 

to  protect  an  execution  lien,  and  if  all  the  known  parties  in  interest 
are  before  the  court  the  possible  interest  of  other  parties  is  not 
a  sufficient  reason  for  refusing  the  relief  sought.69    It  is  a  general 
rule  that  a  bill  for  injunction  to  restrain  the  execution  of  a  judg- 
ment   is    demurrable    for    defect   of    parties   defendant,    if   the 
judgment  plaintiff  is  not  made  a  defendant.    An  injunction  will 
not  issue  to  restrain  an  execution  sale  of  real  estate  in  a  foreign 
State,  and  from  prosecuting  legal  proceedings  therein  against  its 
owner  for  the  collection  of  a  debt  alleged  to  be  due  defendants, 
where  it  appears  that  judgment  in  the  action  has  been  rendered 
and  sale  made  thereunder  to  parties  not  before  the  court.       An 
administrator  who  has  obtained  an  order  to  sell  land  to  pay  his 
intestate's  debt  is  a  necessary  party  defendant  in  a  suit  by  a  per- 
son claiming  under  a  tax  deed  to  enjoin  tho  commissioner  ap- 
pointed by  the  court  from  making  the  sale.71 

§G54.  Defect  of  parties;  effect  of.— If  an  injunction  be 
obtained  to  stay  proceedings  on  a  judgment  or  decree,  and  the 
plaintiff  neglects  for  an  unreasonable  length  of  time  to  summon 
other  defendants,  or  to  have  an  order  of  publication,  or  to  amend 
his  bill,  when  he  knows  there  are  other  necessary  defendants,  or 
otherwise  fails  to  expedite  the  suit,  the  court  will,  on  motion  of 
the  defendant,  even  before  the  answer  is  filed,  dissolve  the  injunc- 
tion. But  if  the  defendant,  whose  judgment  is  enjoined,  acquiesces 
in  it  for  years  by  making  no  motion  to  dissolve  such  injunction, 
and  then  moves  to  dissolve  it,  even  after  the  filing  of  his  answer, 
the  court  ought  to  refuse  to  dissolve  the  injunction  on  his  motion, 

69.  Eaton  v.  Eaton,  68  Mich.  158,  that   the   sheriff   was  a  mere  formal 
'  .„    ,-0  party,  who  was  not  interested  in  the 
70    Mexican    Ore    Co.    v.  Mexican  slightest  degree  in  the  subject  matter 
Guadalupe   Min.    Co.,     47     Fed.    351.  of  the  suit,  or  the  questions  sought 
The  plaintiff  brought  suit  in   equity  to   have   decided,   and   that   the   corn- 
to    restrain    the    sheriff   from    selling  plaint  was  properly  dismissed  on  de- 
certain  property  to  satisfy  numerous  murrer.      Howell   v.   Foster,    122   111. 
fee-bills   and   executions,   issued   upon  276,  13  N.  E.  527. 
ud'ments    in   favor   of   various   par-  71.  Bevill  v.  Smith,  25  Fla.  209    6 
\t P heading  the  bar  of  the  statute  So.    62;    Merritt    v.    Duffin     24    Fla 
of limitations.     The  judgment  plain-  320,  4  So.  806;  Alston  v.  Rowles,  13 
Jffs   were  not  made  parties.      Held,  Fla.   110;   Scarlett  v.  Hicks,  13   Fla. 

967 


§655       Against  Judgments;  General  Considerations. 

and  continue  it  till  the  hearing,  unless  the  evidence  satisfy  the 
court  that  the  case  cannot  be  changed  by  any  proof  which  the 
plaintiff  can  produce,  as  where,  for  instance,  a  judgment  or  decree 
estops  the  plaintiff  from  proving  the  material  allegation  in  his 
bill.  But  in  such  case  the  court  should  require  the  plaintiff  to 
expedite  his  cause,  and  as  promptly  as  possible  have  it  matured 
at  rules  and  set  for  hearing,  under  the  penalty  of  a  dissolution  of 
his  injunction  on  motion,  before  the  hearing.72 

§  655.  Must  be  judgment  or  lien  creditors. — An  injunction 
will  not  be  issued  to  restrain  the  sheriff  from  paying  money 
realized  on  an  execution  sale  to  the  judgment  creditor,  on  the 
ground  that  the  judgment  is  collusive  and  fraudulent  as  against 
plaintiffs,  who  are  also  creditors  of  the  judgment  debtor,  where 
they  have  not  reduced  their  claim  to  judgment,  and  have  no  lien 
on  the  property  sold,  or  on  the  funds  produced  by  the  sale.73  And 
mere  attaching  creditors  have  not  a  standing  in  equity  to  restrain 
a  judgment  creditor  from  proceeding  by  due  course  of  law  to 
obtain  satisfaction  of  his  judgment.74 

314;   Loring  v.  Wittich,  16  Fla.  495;  73.  Kelly  v.  Herb,  157  Pa.  St.  41, 

Robinson  v.   Springfield   Co.,  21    Fla.  27    Atl.    559.      And    see    Southard    v. 

203,  234.  Benner,   72   N.   Y.   424.      In   Smith   v. 

72.   McCoy   v.   McCoy,  29   W.   Va.  Railroad  Co.,  99  U.   S.  398,  Swayne, 

794,  2  S.  E.  809,  per  Green,  J.:     "No  J.,  said:     "Nothing  is  better  settled 

party  can  ever  be  estopped  or  in  any  than    that  such   a   bill   must   be   pre- 

way   prejudiced  by  any   judgment  or  ceded   by    a   judgment   at    law   estab- 

decree,  if  the  record  in  the  first  suit  lishing   the   measure   and   validity   of 

on  its  face  shows  that  he  had  no  op-  complainant's    demand    for    which    he 

portunity   to   be   heard    in   opposition  seeks  satisfaction  in  chancery.     Hen- 

to  the  entry  of  such  judgment.    Poole  dricks  v.  Rohinson,  2  Johns.  Ch.  283; 

v.  Dilworth,  26  W.  Va.  583;  Corroth-  Greenway    v.   Thomas,     14     111.     271; 

ers  v.  Sargent,  20  W.  Va.  356;  Beck-  Mizell  v.  Herbert,  20  Misc.  550;  Gor- 

with   v.   Thompson,    18   W.   Va.    103;  ton  v.  Massey,   12  Minn.   147;   Skeele 

Coville   v.    Gilman,    13    W.    Va.    327;  v.  Stanwood,  33  Me.  307." 

Western  Mining  Co.  v.  Virginia  Coal  74.   Artman   v.  Giles,    155   Pa.   St. 

Co.,  10  W.  Va.  250;   Tracey  v.  Shu-  409,    26    Atl.    668,    per    Mitchell,    J.: 

mate,  22  W.  Va.  509;  Renick  v.  Lud-  "It  is  conceded  that  this  injunction 

ington,  20  W.  Va.  511;   Haymond  v.  is  without  precedent  in  Pennsylvania. 

Camden,  22  W.  Va.  180;  Stephens  v.  The  complainants  are  of  two  classes 

Brown,   24   W.   Va.   234;    Underwood  — one  mere  simple  contract  creditors, 

v.  McVeigh,  23  Gratt.  409."  with  neither  judgment  nor  lien;   the 

968 


Against  Judgments;  General  Considerations.       §656 


§  656.  Same  subject;  preferred  liens. — Equity  will  not  inter- 
fere to  impound  property  or  tie  up  interests  after  an  execution  sale 
thereof,  in  order  to  establish  a  lien  thereon  under  attachment  pro- 


other,    also    without    judgment,    but 
with  such  lien  as  they  have  obtained 
by  attachment,  under  the  act  of  1869. 
As  to  the  former,  the  overwhelming 
weight  of  authority  is  against  the  as- 
serted right.     It  is  enough  for  us  to 
quote  the  deliberate  opinion  of  Chan- 
cellor   Kent,    in     Wiggins    v.    Arm- 
strong, 2  Johns.  Ch.  144,  where,  after 
stating  frankly  that  his  first  impres- 
sion was  in  favor  of  the  jurisdiction 
in  equity,   he  concludes  after  exami- 
nation of  the  cases  that  it  could  not 
be  sustained,  and  that  there  ought  to 
be  no  interference  until  the  creditor 
has    established    his    title    by    judg- 
ment.     'On   the   strength   of  settled 
authorities '    he    dismissed    the    bill. 
The    cases    cited    by    appellant    show 
that  this  view  has  been  followed  with 
great    uniformity    in    nearly    all    the 
States  where  the  question  has  arisen. 
The   cases   also   show   that  the   same 
general   rule   applies    to    the    second 
class  of  the  complainants — those  who 
have     issued     attachments.        Excep- 
tional    cases     may     arise     in    which 
creditors  having  a  lien,  even  though 
only  by  attachment  on  mesne  process, 
may   have  a   standing   for   assistance 
in   equity,    but    the    presumption   is 
against  them,  and  for  the  same  rea- 
sons as  in  regard  to  the  other  class. 
As  a  general    rule    they    are  left  to 
their     rights    and    remedies   at   law. 
The  present    is    not    such  an  excep- 
tional case  as  would  bring  it  within 
our    authorities.      As    already    said, 
there  is  no  precedent  upon  the  same 
state   of   facts,   but   the   general   rule 
that  equity  will  not  interfere  between 
debtor   and  creditor,  but   will   leave 


each  to  his  rights  and  his  remedies  at 
law,    is    settled   beyond    all    question. 
The  cases   in  which   equity  has  been 
most    frequently    invoked    are    where 
the  creditor  is  alleged  to  be  proceed- 
ing under  forms  of  law,  but  in  viola- 
tion of  other  parties'  rights.     Of  this 
class  are  Gilder  v.  Merwin,  6  Whart. 
522;     Riley     v.     Ellmaker,   6    Whart. 
545;   Reeser    v.    Johnson,  76  Pa.  St. 
313;   Taylor's  Appeal,  93  Pa.  St.  21; 
Davis  v.  Michener,   106  Pa.  St.  395; 
and   Walker's   Appeal,     112    Pa.     St. 
579,  4  Atl.    13.      The  only  exception 
so  far  recognized  is  in  the  case  of  a 
levy  upon  a  wife's  separate  property 
for  a  debt  of  the  husband.      It  was 
held  in  Hunter's  Appeal,  40  Pa.  St. 
194,  that  a  bill  would  lie  for  an  in- 
junction in  such  a  case,  but  the  de- 
cision was  put  upon  the  ground  that 
the   statute  expressly   prohibits   such 
a  levy,  and  the  fact  that  the  wife's 
title  was  undisputed.     In  the  subse- 
quent   case    of    Thompson's    Appeal, 
107   Pa.   St.  559,   an  injunction   was 
awarded  against  repeated   actions  of 
ejectment,  brought  by  a  sheriff's  ven- 
dee of  the  husband's  title,  but  it  was 
again  on  the  ground  that  such  action 
was    contrary    to    the    statute,    the 
wife's   estate    being    undoubted,    and 
the   ejectments  not   brought   in   good 
faith.     If  there  be  any  doubt  or  dis- 
pute on  the  facts  the  creditor  is  en- 
titled to  levy  and  sell  and  proceed  by 
ejectment     on     the      sheriff's      deed. 
Winch's  Appeal,  61  Pa.  St.  424.     In 
this  case  it  is  said  by  Agnew,  J.,  that 
the  jurisdiction  in  equity  '  was  never 
intended  to  be  used  to  obstruct  the 
collection  of  debts.'    And  in  Taylor's 


969 


§657      Aoainst  Judgments;  General  Conbitjebatiobs. 

ceedings  that  have  not  even  reached  a  judgment11  And  since,  by 
certain  Maryland  statutes  and  mortgages  executed  as  thereby  re- 
quired, all  the  property  of  the  Chesapeake  and  Ohio  Canal  Com- 
pany became  bound  for  the  debts  due  by  the  company  to  the  State, 
subject  only  to  the  liens  in  favor  of  bondholders,  it  was  held  that  a 
judgment  creditor  who  had  no  equity  as  against  the  State  and 
bondholders  could  be  enjoined  at  their  suit  from  levying  on  the 
property  of  the  company.76 

§  G57.  Enjoining  judgment  barred  by  laches. — A  petition  in 
equity  to  enjoin  the  enforcement  of  a  judgment  of  a  justice  of  the 


Appeal,  rapra,  the  present  eliief  jus- 
tice, after  stating  the  rule  that 
equity    will     not     intervene,     but    the 

creditor    will    be   allowed    to    pro* I 

with  his  execution,  and  test  the  title 
by  ejectment,  continues:  'It  may 
happen  that  the  bona  fide  owner  of 
real  estate  is  subject  d  to  the  incon- 
venience of  having  hi-<  property 
levied  on  for  the  debt  of  one  who  is 
not  and  has  never  been  interested 
therein;  but  such  results  cannot  be 
wholly  avoided.  Relief  must  be 
sought,  when  they  so  occur,  in  speed- 
ing the  determination  of  the  ques- 
tions in  dispute  by  such  means  as  are 
provided  by  law  for  that  purpose.' 
The  only  case  at  all  analogous  to  the 
present,  in  which  a  creditor  not  bav- 
in;; a  judgment  has  been  permitted 
to  interfere  with  the  debtor's  disposi- 
tion of  his  property,  is  Fowler  v. 
Kingsley,  87  Pa.  St.  449.  In  that  case 
the  bill  averred  that  the  debtor  had 
conveyed  land  to  his  son-in-law,  by 
collusion,  to  defraud  his  creditors, 
and  that  the  grantee  was  about  to 
convey  to  bona  fide  purchasers.  The 
debtor  having  died,  the  bill  was  sus- 
tained upon  the  ground  that  the 
creditor  complainant,  though  with- 
out a  judgment,  had  an  express  stat- 


utory lien,  which  gave  him  a  stand- 
ing. To  sustain  the  present  injunc- 
tion    would     lie    going    a    decided     -t'|' 

further  than    any    step    adjudicated, 

and  in  opposition  to  established  prin- 
ciples." And  see  Martin  v.  Michael, 
23  Mo.  50;  Bigclow  v.  Andress,  31 
III.  322. 

75.  Rollins  v.  Van  Baalen,  56 
Mich.  610,  23  N.  W.  332,  per  ramp- 
bell,  J.:  "The  only  cases  cited  from 
our  reports  in  which  relief  was 
given  to  attaching  creditors  be- 
fore judgment,  were  Hale  v.  Chan- 
der,  3  Mich.  531;  and  Edson  v. 
Cumings,  52  Mich.  52.  17  N.  W.  G93. 
Roth  those  cases  were  peculiar,  and 
the  defendants  in  both  failed  to  raise 
any  objection  by  demurrer,  but  saw 
fit  to  answer  and  go  to  hearing  on 
proofs.  As  to  the  general  rule  that 
the  creditor  must  first  exhaust  his 
remedy  at  law  before  proceeding 
against  equitable  interests,  see  Tyler 
v.  Peatt,  30  Mich.  63." 

76.  Brady  v.  Johnson,  75  Md.  445, 
26  Atl.  49.  And  see  Macalester's 
Adm'r  v.  Maryland,  114  U.  S.  598,  5 
S.  Ct.  1065,  29  L.  Ed.  233;  Guc  v. 
Canal  Company,  24  How.  (U.  S.) 
257,   16  L.  Ed.  635. 


970 


Against  Judgments;  General  Considerations.       §  657 


peace,  which  does  not  aver  facts  from  which  it  appears  that  the 
plaintiff  has  a  meritorious  defense  to  the  cause  of  action  on  which 
the  judgment  is  based,  and  that  his  failure  to  interpose  such 
defense  in  the  justice  court,  and  to  avail  himself  of  an  appeal 
or  proceedings  in  error,  was  not  due  to  any  neglect  or  default  on 
his  part,  does  not  state  a  cause  of  action.77  And  a  consent  judg- 
ment will  not  be  declared  void  on  the  ground  of  fraud  in  an  action 
brought  by  the  party  against  whom  it  was  rendered  nearly  twenty 
years  afterwards,  where  the  facts  constituting  the  alleged  fraud 
were  open  to  the  observation  of  such  party  during  the  whole  time.78 
Where  defendants  consent  to  waive  all  defenses,  and  confess  judg- 
ment on  the  strength  of  a  verbal  agreement  that  plaintiffs  will 
stay  execution  for  a  year,  they  cannot  enjoin  a  sale  under  the 
execution  which  plaintiffs  levied  before  the  end  of  the  year,  being 
guilty  of  laches  in  standing  by  and  permitting  the  execution  to 
be  levied  without  moving  the  court  to  recall  it.79 


77.  Langley  v.  Ashe,  38  Neb.  53, 
56  N.  W.  720,  per  Ragan,  C. :  "So 
far  as  the  record  shows,  the  now 
complainant  made  no  effort  to  defend 
himself  before  the  justice.  He  took 
no  steps  to  review  in  law  courts  the 
errors  alleged.  In  other  words,  he 
has  slighted  the  tribunals  and  rem- 
edies provided  by  law  for  him,  and 
now  says  to  allow  the  judgment  to 
be  enforced  would  be  contrary  to 
equity  and  good  conscience.  Let  ua 
see  what  he  says  about  the  defense 
he  has  to  the  note  sued  before  the 
justice.  '  The  plaintiff  further  al- 
leges that  he  had  a  good  and  lawful 
defense  in  said  action  before  said  jus- 
tice of  the  peace  in  this,  to  wit: 
That  he  would  then  have  alleged  and 
does  now  allege  that  he  did  not  sign 
the  promissory  note  sued  upon  in 
said  action.'  This  will  not  do.  The 
question  is  not  what  he  would  have 
alleged  before  the  justice  of  the 
peace,  but  what  were  the  facts.  This 
averment   would  not  entitle   him   to 


equitable  relief  from  the  judgment, 
had  it  been  rendered  against  him 
without  any  service  upon  him  what- 
ever. Janes  v.  Howell,  37  Neb.  320, 
55  N.  W.  965.  If  he  did  not  sign  this 
note,  why  did  he  not  appear  before 
the  justice  on  January  23d,  and  say 
so?  If  he  was  prevented  from  mak- 
ing his  defense,  if  he  had  one,  by 
accident,  surprise,  mistake  or  fraud, 
his  petition  should  so  state.  Scofield 
v.  Bank,  9  Neb.  316.  The  facts  stated 
do  not  constitute  a  cause  of  action." 

78.  City  of  Goliad  v.  Weisiger,  4 
Tex.  Civ.  App.  653,  23  S.  VV.  694. 
And  see  Osborn  v.  Gehr,  29  Neb.  661. 

79.  Moulton  v.  Knapp,  85  Cal.  385, 
24  Pac.  803,  per  Foote,  C:  "We 
do  not  see,  after  the  laches  of  the 
plaintiffs  in  not  taking  advantage  of 
their  adequate  and  speedy  legal  rem- 
edy by  motion,  as  heretofore  stated, 
they  can  be  said  to  have  made  in 
their  complaint  a  sufficient  showing 
to  entitle  them  to  the  injunction 
which  they  obtained.     And  this  view 


971 


§  65S       Against  Judgments;  General  Considerations. 

§  658.  Sureties'  suit  to  enjoin  judgment. — Where  the  sureties 
on  the  bond  of  a  trustee  for  the  benefit  of  creditors  filed  a  bill  in 
equity  to  enjoin  the  enforcement  against  them  of  a  judgment 
allowing  alleged  fraudulent  claims  which  had  been  obtained  by  a 
pretended  fraudulent  conspiracy  between  the  trustee  and  the 
debtor  and  his  wife,  the  injunction  was  denied  on  the  ground  that 
the  bill  did  not  show  that  the  sureties  were  in  danger  of  being 
injured,  as  they  were  responsible  only  for  the  amount  received 
by  the  trustee,  and  as  the  allowance  of  fraudulent  claims  dimin- 
ished that  amount,  it  could  not  increase  but  would  rather  lessen 
the  sureties'  liability.80  But  a  surety  on  an  administrator's  bond 
has  such  an  interest  in  setting  a  judgment  against  the  adminis- 
trator aside  that  he  may  file  a  bill  to  enjoin  its  enforcement  against 
the  estate  and  for  the  purpose  of  having  it  declared  void  as  against 
himself.81  And  an  executed  agreement  between  a  creditor  and 
his  debtor  for  forbearance  to  sue  in  consideration  of  the  payment 
of  an  usurious  premium  operates  in  equity  as  a  release  of  the 
debtor's  sureties,  and  if  the  creditor  in  such  a  case  obtains  judg- 
ment against  the  sureties  before  they  learn  of  such  indulgence, 
a  court  of  equity,  on  a  proper  showing  by  the  sureties,  will  per- 
petually enjoin  the  execution  of  the  judgment  as  against  them.82 
A  surety  cannot,  however,  enjoin  an  assignee  from  enforcing  a 
judgment  recovered  by  the  principal  against  the  surety,  on  the 
ground  that  he,  as  surety,  has  paid  a  portion  of  a  smaller  judgment 
against  his  principal,  who  is  now  insolvent,  without  offering  to 
pay  the  excess  of  that  judgment  over  his  claim.83 

of  the  matter  is  supported  by  Ede  v.  were  discharged  by  reason  of  the 
Hazen,  61  Cal.  360."  See,  also,  Im-  holder  of  the  note  having  ex- 
lay  v.  Carpentier,   14  Cal.   173.  tended     the     time     of     payment     to 

80.  Taylor  v.  Mallory,   76  Md.    1,  the     principal     debtor,     in     consid- 
23  Atl.  1008.  eration     of     a     usurious      premium 

81.  Washington  v.  Barnes,  41  Ga.  paid  by  him  in  advance,  it  not  being 
307.  shown  that  they  were  prevented  from 

82.  Armistead  v.   Ward.  2  Patton  setting  up  this  defense  in  the  action 
&  H.    (Va.)   504.     In  Vilas  v.  Jones,  at  law  by  any  fraud  or  accident,  or 
1  N.  Y.  274,  it  was  held  that  after  by  the  act  of  the  adverse  party, 
judgment    at    law    a    bill    in    equity  83.  Smith  v.  Smith,  75  Tex.  410, 
could  not  be  sustained  on  the  ground  12  S.  W.  678. 

that  the  complainants,    as    sureties, 

972 


Against  Judgments  ;  Geneeal  Consideeations.       §  659 

§  659.  Same  subject. — The  enforcement  of  a  judgment  against 
a  surety  of  the  judgment  debtor  should  'be  enjoined  if,  after  levy 
on  property  enough  of  the  debtor  to  satisfy  the  judgment,  the  levy 
is  abandoned  on  receipt  by  the  sheriff  of  a  check  from  the  debtor,84 
for  the  judgment  creditor,  by  authorizing  the  act  of  the  sheriff 
in  releasing  the  levy,  lost  his  remedy  against  the  surety.85  And 
the  sureties  on  a  replevin  bond  may  be  granted  an  injunction 
against  the  enforcement  of  the  judgment  in  replevin  where  the 
trial  and  judgment  were  had  after  the  plaintiff  died  and  without 
a  revivor  or  suggestion  of  death  on  the  record.*6  Where  one  is 
induced  to  become  indorser  of  a  note  by  the  payee's  statements  that 
it  is  mere  matter  of  form,  and  he  will  not  be  troubled  about  it, 
and  he  makes  no  defense  in  the  action  brought  on  the  note,  and 
judgment  is  obtained  by  default,  he  cannot  claim  that  the  judg- 
ment is  not  binding  on  him;  but  if  by  similar  statements  made 
after  judgment,  he  is  induced  to  abstain  from  securing  himself, 
when  he  might  have  easily  done  so,  until  the  maker  becomes  in- 
solvent, he  is  entitled  to  have  an  execution  against  himself  per- 
petually enjoined.87  The  rule  that  equity  will  not  interfere  with 
a  judgment  to  let  in  defenses  which  could  and  should  have  been 
made  in  the  suit  at  law,  applies  also  to  sureties.  Thus,  where 
accommodation  indorsers  of  a  note  filed  a  bill  alleging  that  they 
became  so  relying  on  the  security  furnished  by  certain  land  which 

84.  After  recovery  of  judgment  on  judgment;  that  the  withdrawal  of  the 

a  note  against  the  maker,  E.,  and  the  levy    was    by    authority   of    N. ;    and 

indorser,    F.,   and    levy   of   execution  that    F.    was   an    accommodation    in- 

under    it    on    goods    of    E.,    E.    gave  dorser  for  E.  of  the  note.    Held,  that 

a  check,  signed  by  his  attorney.  N.,  the    enforcement    of    the    judgment 

to    the    judgment    creditor,    and    re-  against     F.     should     be     restrained, 

ceived   from   the  creditor  an   assign-  Flagler  v.  Newcombe,  13  N.  Y.  Supp. 

ment  of  the  judgment;  and  the  sher-  299. 

iff  abandoned  the  levy,  and  returned  85.  Voorhees  v.  Gros,  3  How.  Pr. 

the    execution    unsatisfied.      Thereaf-  (N.    Y.)    262;     Green    v.    Burke,    23 

ter  N.   sought  to  collect  it  from   F.  Wend.  (N.  Y.)  501;  Fraley  v.  Stein- 

In  an  action  by  F.  to  restrain  such  metz,  22  Pa.  St.  437;  Ladd  v.  Blunt, 

collection,    there    was    evidence    that  4  Mass.  402;    Hunt  v.  Breading,   12 

the  money  paid  for  the  assignment  of  S.  &  R.   (Pa.)   317,  14  Am.  Dec.  G65. 

the  judgment  was  advanced  by  N.  for  86.  McBrayer     v.     Jordan      (Neb. 

the  benefit  of  E.;  that  the  property  1905),   103  N.  W.  50. 

levied  on  was  enough  to  satisfy  the  87.  Roberts  v.  Miles,  12  Mich.  297. 

973 


§600       Against  Judgments;  Gkxkk.u.  Cofsidebations. 

their  principals  had  conveyed  to  the  creditor  as  security  for  the 
debt,  and  that  the  creditor  had  since  reccnveyed  the  land  to  the 
debtors  who  were  both  insolvent,  and  that  the  creditor  had  sued 
both  principals  and  sureties  on  the  note  without  reference  to  the 
land,  it  was  held  that  the  sureties  were  thereby  put  upon  notice 
that  the  creditor  was  not  proceeding  against  the  land,  and  that  by 
failing  to  ascertain  the  condition  of  the  landed  security,  and  by 
permitting  judgment  to  be  rendered  against  them,  they  had  by 
their  laches  forfeited  any  right  to  injunctive  relief.88  And  where 
a  creditor,  who  had  been  duly  notified  by  a  surety,  failed  to  obtain 
judgment  and  levy  execution  on  the  principal  within  a  reasonable 
time,  it  was  held  that  the  surety  could  not  maintain  injunction 
against  the  attempted  enforcement  of  the  judgment  against  him- 
self, as  he  had  an  adequate  defense  at  law/9 

§  6G0.  Enjoining  arbitrators'  awards. — A  court  of  equity  will 
not  interfere  in  behalf  of  a  party  whose  defeat  in  a  submission 
before  arbitrators  is  in  any  essential  degree  attributable  to  his 
own  negligence;  but  it  will  set  aside  and  enjoin  the  enforcement 
of  an  award  obtained  by  the  fraud  and  perjury  of  the  adverse 
party  to  the  submission.90    Where,  however,  it  appeared  that  all  the 

88.  Smith  v.  Phinizy,  71  Ga.  641.  position    that    equity    will    interfere 

89.  Martin  v.  Orr,  96  Ind.  27.  The  and  set  aside  an  award  obtained  by 
surety  on  a  claim  bond,  whose  co-  the  fraud  or  misbehavior  of  one  of 
surety  was  dead,  seeking  to  enjoin  ex-  the  parties.  Allen  v.  Ranney,  1 
ecution  on  a  judgment  of  forfeiture,  Conn.  571;  Brown  v.  Green,  7  Conn, 
because  the  name  of  his  principal,  a  542;  Duren  v.  Getchell,  55  Me.  241; 
corporation  resident  in  a  distent  Spurck  v.  Crook,  19  111.  415;  Mul- 
State,  had  been  signed  to  the  bond  drow  v.  Norris,  2  Cal.  74;  Peachy  v. 
without  its  authority,  took  no  Bteps  Rithcie,  4  Cal.  207;  and  see  Wingate 
for  eight  months  to  see  whether  the  v.  Haywood,  40  N.  H.  437;  Elkins  v. 
attorney  claiming  to  act  for  the  cor-  Paige,  45  N.  II.  310;  George  v. 
poration  really  had  authority  to  de-  Johnson,  45  N.  H.  456;  Great  Falls 
fend  against  proceedings  on  the  bond.  Mfg.  Co.  v.  Worster,  45  N.  H.  110." 
Held,  that  he  was  not  entitled  to  an  In  Emerson  v.  Udall,  13  Vt.  484,  Red- 
injunction.  Clegg  v.  Darragh,  63  field,  J.,  said:  "Partially  or  cor- 
Tex.  357.  ruption   in  the  arbitrators,  or  fraud 

90.  Craft  v.  Thompson.  51  N.  H.  in  the  party  obtaining  the  award  are. 
536t  per  Foster,  J.:  "The  following  grounds  of  deiense  exclusively  of 
are'  among  the   cases  sustaining  the  equitable  cognizance — citing  Wills  v. 

974 


Against  Judgments;  General  Consideeations.       §§661,662 

defenses  set  up  in  a  bill  for  an  injunction  to  enjoin  a  sale  under 
a  judgment  entered  on  arbitrators'  award  had  been  made  before 
the  arbitrators  and  decided  against  complainant,  it  was  held  that 
such  defenses  were  res  ad  judicata  and  the  injunction  would  not 
lie.91 

§  661.  When  bankrupt  may  enjoin  execution. — Where  a  judg- 
ment debtor  has  obtained  his  discharge  as  a  'bankrupt  subsequent 
to  the  judgment  against  him,  he  may  restrain  the  suing  out  of  an 
execution  on  the  judgment.92  But  one  who  seeks  to  enjoin  the 
execution  sale  of  land  on  the  ground  that,  since  the  judgment 
was  recovered,  the  debt  has  been  discharged  in  bankruptcy,  must 
pay  the  debt  as  a  condition  of  obtaining  the  relief  sought,  if  it 
appears  that  he  fraudulently  omitted  this  land  from  his  schedule 
of  assets.93  Again,  where  a  bankrupt  came  into  a  State  court  on 
the  hearing  of  a  bill  filed  by  some  of  his  creditors  to  set  aside  a 
fraudulent  conveyance  of  his  land,  and  expressed  a  willingness 
to  pay  such  debts,  and  after  his  discharge  in  bankruptcy,  and 
after  he  had  reacquired  the  land,  promised  to  pay  such  creditors, 
he  is  not  entitled  to  have  enjoined  the  sale  ordered  by  the  State 
court;  his  only  remedy,  in  case  the  decree  was  erroneous,  being 
by  appeal.94 

§  662.  To  prevent  multiplicity  of  suits. — Where,  by  stipula- 
tion, several  cases  have  gone  to  judgment  in  accordance  with  the 
result  of  another  which  has  been  tried,  and  their  validity  depends 
upon  the  same  facts,  and  all  the  judgments  are  held  by  the  same 
person,  the  judgment  debtor,  in  order  to  avoid  a  multiplicity  of 
actions  and  protect  himself  from  the  vexation  and  cost  of  numerous 
executions  and  levies,  may  bring  one  suit  in  equity  for  a  decree  to 
finally  determine  the  matter  in  dispute  in  all  the  cases.95     And 

Maccarmick,  2  Wils.   148;   Braddick  92.  Peatross     v.     McLaughlin,     6 

v.  Thompson,  8  East,  344.     See,  also,  Gratt.   64. 

Hardin  v.  Brown,  27  Ga.  319;  Boston  93.  McMurtry  v.  Edgerly,  20  Neb. 

Water  Power  Co.  v.  Gray,  6  Met.  131.  457,  30  N.  W.  417. 

See  Great  Southern  F.  P.  H.  Co.  v.  94.  Epperson     v.     Robertson,     91 

McClain    4  Ohio  Dee.  309.  Tenn.  407,  19  S.  W.  230. 

91.  Canada  v.   Barksdale,   84   Va.  95.  Marshall  v.  Holmes,  141  U.  S. 

742,  6  S.  E.   10.  589,  595,  12  S.  Ct.  62,  35  L.  Ed.  870. 

975 


§663       Against  Judgments;  General  Considerations. 

where  attachments  have  been  issued  against  a  debtor,  ami  notice! 
of  garnishment  served  upon  a  garnishee,  and  other  creditors  there* 
after  obtain  separate  judgments  against  the  debtor,  and  levy  execu- 
tion! upon  the  goods  in  the  hands  oi  the  garnishee,  the  attaching 
creditors,  in  an  action  to  determine  the  priority  of  Liens  and  for 
an  injunction,  may  enjoin  the  defendants  from  selling  under  their 
executions  until  the  final  determination  of  the  case.  In  such  a 
case,  an  action  for  injunctive  relief  is  the  proper  remedy  to 
prevent  a  multiplicity  of  suits,  and  determine  in  one  suit  the 
priorities  of  the  several  liens.98 

§003.  Preliminary  injunctions;  requisites. — A  bill  asking  for 
a  pri  liminary  injunction  to  restrain  a  sale  on  execution  against  a 
third  person,  must  be  sworn  to  on  personal  knowledge  of  facts  that 
will  justify  the  injunction  or  the  reason  must  be  shewn  for  the 
absence  of  such  verification.97  And  the  equity  of  an  application 
for  an  injunction  being  fully  met  by  the  answer  and  proofs,  the 
judgment  of  a  court  of  law  should  not  bo  interfered  with  by  a  pre- 
liminary injunction.98  But  a  preliminary  injunction  on  the  appli- 
cation of  a  judgment  creditor  restraining  an  execution  sale  of  the 
debtor's  land  under  execution  by  another  creditor,  on  the  ground 
that  the  latter's  judgment  was  collusive,  will  be  continued  until 
the  hearing  where  it  appears  that  the  sale  would  seriously  impair 
complainant's  right,  and  that  the  delay  will  not  greatly  injure  the 
defendant.99  And  where  it  appears  doubtful  from  affidavits 
whether  goods  on  which  it  is  attempted  to  levy  a  mortgage  fi.  fa. 
are  the  goods  covered  by  the  mortgage,  a  preliminary  injunction 
against  the  levy  should  be  continued  until  the  final  hearing.1 
Again,  in  an  action  to  restrain  the  sale  of  land  under  execution 
against  plaintiff's  grantor,  the  court  should  continue  the  restrain- 
ing order  pending  final  determination,  and  it  is  an  abuse  of  dis- 

96.  Northfield  Knife  Co.  v.  Snap-  99.  Bost  v.  Lassiter,  105  N.  C. 
leigh,  24  Neb.  635,  39  N.  W.  788.  490,  11  S.  E.  329. 

97.  Manistique  Lumber  Co.  v.  1.  Lanier  v.  Adams,  72  Ga.  145. 
Lovejoy,  55  Mich.  189.  20  N.  W.  899.  And  see  Pierce  v.  Mayer,   13  N.  Y. 

98.  Nibert  v.   Baghurst,  47  N.  J.  Supp.  343. 
Eq.  201,  20  Atl.  252. 

976 


Against  Judgments  ;  General  Considerations.         §§  664-5-6 

cretion  to  dissolve  it  upon  the  filing  of  an  answer  denying  the 
allegations  of  the  bill.2 

§  664.  Refunding  bond. — In  Alabama,  where  a  bill  seeks  to 
enjoin  and  stay  proceedings  on  a  judgment  at  law,  it  is  error  to 
dissolve  the  injunction  on  the  denials  of  the  answer  without  re- 
quiring the  execution  of  a  refunding  bond  by  the  defendant,  as 
prescribed  by  the  Code,  but  this  error  may  be  corrected  on  appeal, 
by  amending  the  decree  so  as  to  require  the  bond  to  be  given,  and 
then  the  decree  may  be  affirmed.3 

§  665.  Requisites  of  bill  to  enjoin  judgment;  demurrer. — A 
bill  seeking  to  enjoin  judgment  and  execution,  which  does  not  so 
identify  these  as  to  make  it  appear  what  judgment  and  execution 
are  meant,  and  which  does  not  limit  the  prayer  for  injunction  to 
any  particular  judgment  and  execution,  is  demurrable.4  And  a 
complaint  seeking  to  enjoin  an  execution  on  a  judgment  at  law 
is  demurrable,  unless  it  show  that  complainant  has  no  full  and 
adequate  remedy  at  law,  by  appeal,  certiorari,  or  application  to 
the  court  which  rendered  the  judgment,5  or  which  does  not  show 
that  the  failure  to  make  the  defense  was  not  due  to  the  negligence 
of  the  one  seeking  the  injunction.6 

§  666.  Multifariousness. — In  a  suit  against  a  sheriff,  the  mem- 
bers of  a  partnership,  and  an  individual,  to  enjoin  the  sale  of 
property  under  two  different  writs,  the  petition  is  not  multifarious 
when  it  shows  that  the  same  property  was  levied  on  by  the  same 
officer  at  the  same  time,  by  virtue  of  two  writs  from  the  same 
court,  one  of  which  was  issued  on  a  judgment  in  favor  of  the 
individual  who  was  also  a  member  of  the  partnership,  that  both 

2.  Chace    v.    Jennings     (Cal.),    28  510.  3  S.  W.  439;  Sanders  v.  Sanders, 

Pac     681.  20  Ark-  61°;   Bel1  v-  Greenwood,  21 

3  Dexter  v.  Ohlander,  95  Ala.  467,  Ark.  249;  Stillwell  v.  Oliver,  35  Ark. 
10  So.  527.  187->     Opie  v.  Clancy,  27  R.  I.  42,  60 

4  Adams  v.  White,  23  Fla.  352,  2  Atl.  635. 

g^    774  6.  City  of  Port  Pierre  v.  Hall   (S. 

5.  Wingfield    v.   McLure,    48    Ark.       D.  1905),  104  N.  W.  470. 

977 

62 


§067        Aoainst  Judgments;  Gbnebal  Considerations. 

judgments  were  against  plaintiff,  and  the  grounds  of  enjoining 
the  levies  under  the  write  were  the  same.1 

§  007.  Staying  injunction  judgment  by  appeal.— The  general 
rule  is  that  a  judgment  containing  an  injunction  ifl  nol  suspended 
l,v  an  appeal;'  but  if  the  judgment  is  mandatory  in  ita  effed  and 
commanda  or  permits  Borne  act  to  be  done,  its  operation  may  be 
stayed.9  And  where,  in  an  action  for  an  injunction  to  prevent 
defendant  from  interfering  with  plaintiff^  connection  with  de- 
fendant's water  conduit,  then-  wae  judgment  for  plaintiff,  from 
which  defendant  appealed  and  gave  the  required  bond,  it  waa 
held  that  the  appeal  stayed  the  operation  of  the  judgment,  bo  thai 
the  defendant  was  not  in  contempl  for  preventing  the  connection.10 


7.  Hammer  v.  Woods,  6  Tex.  Civ. 
App.  179,  -it  S.  W.  042,  per  Neill,  J.: 

"  There  was  no  error  in  the  court's 
overruling  appellant's  special  excep- 
tion to  appellee's  original  petition.  In 
our  opinion  there  was  more  reason 
for  holding  the  petitions  in  Clegg  v. 
Varnell,  18  Tex.  304,  and  Bank  v. 
Bates,  76  Tex.  333,  multifarioiM  than 
there' is  in  this  case.  There  is  not 
any  inflexible  rule  as  to  what  consti- 
tutes multifariousness  which  is  fatal 
to  a  suit  on  demurrer.  Defendants 
ought  not  to  be  put  to  inconvenience 
and  expense  in  litigating  matters  in 
which  they  have  no  interest,  and  on 
the  other  hand  plaintiffs  must  not  be 
put  to  tne  necessity  of  bringing  two 
suits  instead  of  one." 

8.  §§  400-406. 

9.  Hicks  v.  Michael,  15  Cal.  107. 

10.  Stewart  v.  Superior  Court,  100 
Cal.  543,  35  Pac.  156,  563,  per  Pater- 
son,  J. :  "  An  appeal  would  in  many 
cases  be  useless,  if  the  execution  of 
a  decree  which  authorizes  or  permits 
the  plaintiff  to  use  the  property  of 
the  defendant  cannot  be  stayed  dur- 
ing the  pendency  of  the  appeal.  'Dur- 


ing the  pendency  of  the  appeal  the 
court  below  could  do  no  act  which  did 
DOt  h'ok  to  the  holding  of  the  sub- 
jcrt  of  thf  litigation  just  as  it  ex- 
isted when  tli*-  decree  was  rendered.' 
Dewey  \.  Superior  Court,  81  Cal.  64, 
68,  22  Pac.  333.  In  Bullion  Beck  & 
Champion  Min.  Co.  v.  Eureka  Hill 
Mm.  Co.,  4  Utah,  151,  13  Pac.  174, 
the  court  said:  'The  taking  of  the 
appeal  and  the  giving  of  the  super- 
sedeas bond  did  not  make  void,  or 
nullify  or  suspend  the  judgment  nor 
the  injunction  contained  therein,  but 
all  affirmative  action  looking  to  the 
execution  of  the  terms  of  the  decree 
was  suspended.  Slaughterhouse  Cases, 
10  Wall.  273;  Swift  v.  Shepard,  64 
Cal.  423.  But  the  lower  court  could 
nevertheless  take  such  action  as  was 
necessary  to  hold  the  property  intact, 
and  enforce  a  continuance  of  the 
statu  quo.  However,  the  District 
Court,  during  the  pendency  of  the 
appeal,  could  do  no  act  which  did  not 
look  to  the  holding  of  the  subject  of 
litigation  just  as  it  existed  when  the 
decree  was  rendered.  Hovey  v.  Mc- 
Donald, 109  U.  S.  161.     In  the  exer- 


978 


Against  Judgments  ;  General  Considerations.       §  668 

An  independent  suit  to  enjoin  the  prosecution  of  an  action  pend- 
ing an  appeal  in  another  proceeding  is  improper,  where  a  stay 
could  have  been  had  on  application  to  the  court.u 

§  668.  Release  of  errors  by  enjoining  judgment. — By  force 
of  statute  in  Missouri  any  technical  errors  which  existed  in  the 
proceedings  at  law  are  released  by  enjoining  the  judgment.12  And 
a  similar  statute  has  existed  in  Illinois;  but  merely  to  enjoin  the 
execution  does  not  operate  as  a  release  of  errors  in  the  action  at 
law  prior  to  and  including  the  judgment;13  and  an  injunction  to 
stay  the  proceedings  at  law  before  judgment  does  not  operate  as 


cise  of  its  authority  to  preserve  the 
property,  the  District  Court  was  em- 
powered to  punish  as  for  contempt  the 
violation  of  any  provision  of  the  in- 
junction, where  the  parties  were  not 
allowing  the  property  to  remain  as  it 
was  at  the  date  of  the  decree.  Taking 
all  the  evidence  together,  we  do  not 
see  that  the  appellants,  at  the  time 
they  are  charged  with  having  violated 
the  injunction,  occupied  any  other  or 
different  place  on  the  lode  in  question 
than  they    did  when    the  judgments 
containing  the   injunction   were   ren- 
dered, or  that  they  were  in  manner 
hindering  or  obstructing  the  respond- 
ent company  from  working  its  lode. 
This  being  so,  an  injunction  could  not 
be  used  to  eject  them.    And  it  was  no 
violation  of  the  injunction  for  the  ap- 
pellants to  remain  as  they  were  when 
the  injunction  was  granted.'     .     .     • 
An    injunction   though   restrictive   in 
form,    if   it  have  the  effect  to  com- 
pel the  performance  of  a  substantive 
act.    is    mandatory,    and    necessarily 
contemplates  a  change  in  the  relative 
positions    or    rights    of    the    parties 
from  those  existing  at  the  time  the 
injunction  is  granted  or  the  decree  is 
entered.    To  hold  that  an  appeal  from 


a  judgment  granting  such  an  injunc- 
tion does  not  stay  the  operation  of 
the  judgment,  would  often  render  a 
reversal  of  the  judgment  entirely  in- 
effectual— •  a  barren  victory.'  Dewey 
v.  Superior  Court,  81  Cal.  64,  68,  22 
Pac.  333;  Mining  Co.  v.  Fremont,  7 
Cal.   132." 

11.  Hay  ward  v.  Hood,  39  Hun  (N. 
Y),  596. 

12.  Hazeltine  v.  Reusch,  51  Mo. 
50;  Price  v.  Johnson  Co.,  15  Mo.  433. 
The  Tennessee  statute  of  1801  is  to 
the  same  effect.  Henly  v.  Robertson, 
4  Yerg.  172.  And  see  in  Mississippi, 
Sevier  v.  Ross,  1  Freeman  Ch.  519. 

13.  St.  Louis,  etc.,  R.  Co.  v.  Todd, 
40  111.  89.  It  is  held  that  such  stat- 
utes do  not  apply  to  equitable  pro- 
ceedings nor  to  judgments  which  are 
absolutely  void,  instead  of  being  only 
erroneous.  San  Juan,  etc.,  Co.  v. 
Finch,  6  Col.  214;  and  does  not  apply 
where  the  act  enjoined  is  itself  in 
violation  of  law.  Burge  v.  Burns,  1 
Morris  (Iowa),  287.  And  such  a 
statute  does  not  preclude  the  judg- 
ment debtor  from  attacking  the  judg- 
ment for  matters  outside  of  the  rec- 
ord, as  that  it  was  procured  by  fraud. 
Bass  v.  Nelms,  56  Miss.  502. 


979 


§669       Against  Judgments;  General  Considerations. 

a  release  of  errore,14  and  it  can  have  such  effect  only  as  to  th© 
party  obtaining  the  injunction.15  In  Indiana  an  early  statute  was 
held  to  require  that  no  injunction  shall  be  granted  to  stay  pro- 
ceedings on  a  judgment  at  law  unless  there  be  indorsed  on  the  bill 
a  release  of  all  errors  in  the  judgment  to  be  enjoined.1'  In  the 
absence  of  statutory  provisions  an  injunction  of  a  judgment  does 
not  uniformly  operate  as  a  release  of  preceding  errors.17 

§  669.  Effect  of  enjoining  all  proceedings. — The  legal  effect 
of  an  order  "that  all  proceedings  be  Stayed  "  for  a  definite  time 
is  to  stop  further  progress  in  the  case  at  the  point  where  the  order 
attaches,  and  a  judgment  entered  while  the  order  is  in  force  ia 
irregular  and  liable  to  be  set  aside.18     The  enjoining  of  a  judg- 


14.  McConnel  v.   Ayrcs,  4   Til    210. 

15.  Taylor  v.  Ricar.ls,  !)  Ark.  37ft, 
where  it  was  held  that  an  injunction 
in  favor  of  a  garnishee  did  not  re- 
lease errors  which  may  have  occurred 
in  the  proceeding!  against  the  attach- 
ment  defendant. 

16.  Addleman  v.  Mormon,  7 
Blackf.    (Ind.)   31. 

17.  Gano  v.  White.   3  Ohio.  20. 

18.  Uhe  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  4  S.  D.  505,  57  N.  VV.  484, 
per  Kellam,  J.:  "  It  cannot  be  ques- 
tioned that  the  order  in  terms  pro- 
hibited any  further  proceeding  in  the 
case.  The  entry  of  judgment  is  a 
proceeding— taking  another  step  for- 
ward.      This     is    what    is   forbidden. 

We  are  referred  to  no  re- 
ported case  where  the  effect  of  such 
an  order  is  considered,  and  we  find 
very  few.  In  Hempstead  v.  Hemp- 
stead, 7  How.  Pr.  8,  the  court  held 
that  an  'order  staying  proceedings 
for  twenty  days'  prohibited  the  en- 
try of  judgment  during  that  time.  In 
that  case  there  had  been  no  trial  and 
verdict,  as  in  the  case  now  before  us, 
and  the  opinion  is  relevant  only   so 


far  as  it  indicates  the  general  scope 
of  inch  an  order.  In  Danner  v.  (ape- 
hart.  41  Minn  294,  12  \.  W.  100,  the 
court  recognized  tht-  force  of  an  or- 
der staying  all  pn>. lingl  to  pre- 
vent tin-  <ntry  of  judgment  on  a  re- 
feree's report  finding  the  facts  and 
directing  judgment,  and  the  in 
larity  of  a  judgment  so  entered.  In 
Ackerman  v.  Manufactui  ing  Co.,  16 
Wis.  1  •">■">.  the  court  set  aside  a  judg- 
ment as  irregular,  because  entered 
while  an  order  staying  proceedings 
was  in  force.  The  defendant  was  in 
default,  and  plaintiff  was  entitled  to 
judgment  before  and  when  the  stay 
was  obtained.  Judge  Payne  says  the 
effect  of  the  stay  was  to  stop  the  pro- 
ceedings in  exactly  the  condition  they 
then  were.  These  cases  are  not  cited 
as  necessarily  decisive  of  the  particu- 
lar question  before  us,  because  upon 
dissimilar  facts,  but  as  bearing  with 
considerable  directness  upon  the  gen- 
eral force  of  such  an  order.  We  are 
unable  to  see  any  good  reason  why 
such  an  order,  general  in  its  terms, 
and  expressly  staying  all  proceedings, 
should  be  held  to  mean  less  than  it 


980 


Against  Judgments  ;  General  Considerations.       §  670 

ment  operates  only  upon  the  judgment  creditor,  and  does  not 
suspend  the  judgment  lien,  but  only  stays  the  execution.  And  a 
judgment,  with  stay  of  execution  till  the  happening  of  a  con- 
tingency or  until  a  future  specified  time,  continues  to  be  a  lien 
upon  the  defendant's  property  during  the  stay.19  And  a  sheriff 
holding  a  writ  of  execution  which  has  been  enjoined,  may  go  on 
after  the  injunction  is  dissolved  and  complete  the  suspended  pro- 
ceedings.20 But  if  the  judgment  creditor  is  restrained  from  all 
proceedings  on  his  judgment  at  law,  he  is  restrained  also  from 
proceedings  in  equity  to  enforce  it.21  When  a  sheriff  is  enjoined 
from  proceeding  with  an  execution,  it  is  not  impaired  or  the  levy 
destroyed,  and  on  dissolution  of  the  injunction  he  may  complete 
the  proceedings  begun  under  the  execution.22 

§  670.  Effect  of  enjoining  execution  on  statute  of  limitations. 
— Equity  will  regard  a  judgment  debtor,  applying  for  an  injunc- 
tion to  restrain  the  execution  of  the  judgment,  as  consenting  that 
if  the  injunction  be  improvidently  granted,  he  will  put  his  adver- 
sary in  the  same  condition  he  was  at  the  time  it  was  granted,  and, 
therefore,  if  while  an  execution  has  been  unjustly  restrained  the 
judgment  has  been  barred  at  law  by  the  statute  of  limitations, 
equity  will  furnish  a  remedy  by  enjoining  the  judgment  defendant 
from  pleading  such  statute.23  The  provision  of  the  Colorado  stat- 
ute concerning  liens  on  realty,  and  suspending  the  running  of  the 
statute  when  issue  of  execution  is  restrained  by  injunction,  applies 
to  a  suspension  of  such  issue  by  supersedeas  on  appeal.24 

plainly  says.     .     .     .     Entertaining  22.  Knox  v.  Randall,  24  Minn.  479. 

these  views  with  great  confidence  in  23.   Marshall  v.   Minter,   43   Miss, 

their   correctness,   we   adhere    to   our  666.     And  see  Sugg  v.  Thrasher,  30 

former  opinion  that  the  fair  and  le-  Miss.  135;  Work  v.  Harper,  31  Miss, 

gal  effect  of  the  stay  was  to  forbid  107;   Wilkinson  v.  Flowers,  37  Miss, 

the  entry  of  judgment  during  its  con-  581.     That  an  injunction  does  not  in 

tinuance  in  force."  itself  stop    the    running    of   acts   of 

19.  Anderson    v.    Tydings,   8   Md.  limitation,    see   Kilpatrick    v.    Byrne, 
427.  25   Miss.   571;    Robertson   v.   Alford, 

20.  Knox  v.  Randall,  24  Minn.  479.      21  Miss.  509. 

See,   also,   Lamorere   v.   Cox,   32   La.  24.   Gottlieb   v.   Thatcher,    151    U. 

Ann.  246.  S.  271,  280,  14  S.  Ct.  319,  38  L.  Ed. 

21.  Little  ▼.  Price,  1  Md.  Ch.  182.     157.    And  see  §  46,  ante. 

981 


§071       Against  Judgments;  Gbnebal  Considerations. 

§  G71.  Miscellaneous  cases.— An  injunction  will  lie  to  restrain 
the  issuing  of  a  writ  of  fieri  facias  on  a  judgment  against  the  city 
of  New  Orleans,  as  the  issuance  of  such  a  writ  against  the  city  is 
prohibited  by  statute.26  And  a  judgment  creditor  who  accepts  a 
warrant  on  the  treasury  of  New  Orleans  which,  when  paid,  is  to 
operate  as  an  extinguishment  of  the  judgment,  will  be  restrained 
from  issuing  an  execution  to  enforce  the  judgment,  if  he  has  failed 
to  return  the  warrant.26  Again,  where  an  individual  obtained 
judgment  on  a  bond  which  was  claimed  as  the  property  of  the 
State  of  Georgia,  under  an  act  of  confiscation  of  British  debts,  an 
in  junction  was  granted  in  favor  of  the  State  to  stay  tho  money  in 
the  hands  of  the  marshal  until  it  was  adjudged  to  whom  the  bond 
(belonged.27  And  where  an  affidavit  of  illegality  was  filed  to  an 
execution,  and  the  issue  was  pending  and  the  case  and  levy  were 
dismissed  for  want  of  prosecution,  the  plaintiff  was  enjoined  from 
proceeding  with  the  levy  in  defiance  of  the  judgment  of  the 
court. 2S  Where  proceedings  In  error  are  taken  to  reverse  a  judg- 
ment, and  without  any  notice  to  the  sheriff  of  such  proceedings, 
application  is  made  for  an  injunction  to  restrain  him  from  selling 
certain  personal  property  seized  upon  an  execution  illegally  issued, 
a  denial  of  the  injunction  will  not  be  reversed  on  appeal,  on  tho 
ground  that  the  sheriff  should  not  be  subjected  to  the  vexation  and 
costs  of  a  suit  without  notice  and  an  opportunity  for  inquiry.29 

25.  New  Orleans  v.  RulefT,  23  La.  28.  Scogin  v.  Beall,  50  Ga.  88.  And 
Ann.  708.  And  see  New  Orleans  v.  see  the  same  principle  involved  in 
Morris,  105  U.  S.  600,  2G  L.  Ed.  Patterson  v.  Gordon,  3  Tenn.  Ch.  18, 
1184,  where  an  execution  sale  of  where  an  appeal  was  prosecuted  to  a 
water-works  stock  belonging  to  the  judgment  against  the  petitioner  Pat- 
city  was  enjoined  because  it  was  terson  after  the  service  of  an  injunc- 
exempt.  tion  restraining  all   proceedings,   and 

26.  New  Orleans  v.  Smith,  24  La.  the  judgment  on  appeal  was  there- 
Ann.  405.  fore  perpetually  enjoined. 

27.  Georgia  v.  Braislford,  2  Dal-  29.  Jaedicke  v.  Patrie,  15  Kan. 
las,  402.  287. 


982 


Against  Judgments;  Defenses  at  Law.        §  671a 


CHAPTER  XXII. 

Against  Judgments;  Defenses  at  Law. 

Section  671a.  Enjoining  judgment-Defense  available  at  law-General  rule. 
671b.  Same  subject  continued. 

672.  Enjoining  judgment  where  defense  not  available  at  law. 

673.  Judgments  enjoined  only  on  equitable  grounds. 

674.  Equitable  defense  as  ground  for  injunction. 

675.  Bills  for  new  trials. 

676.  Same  subject— New  evidence. 

677.  Defense  essential  though  judgment  erroneous. 

678.  Same  subject — Meritorious  defense. 

679.  Judgment  not  enjoined  where  defense  has  been  tried  at  law. 

680.  Same  subject. 

681.  Facts  showing  defense  must  be  pleaded. 

682.  Diligence  in  learning  of  and  making  defense. 

683.  Negligence  as  bar  to  injunction. 

684.  Where  defendant  was  ignorant  of  defense  and  not  negligent. 

685.  Judgment  not  enjoined  where  defendant's  attorney  negligent. 

686.  Injunction  barred  by  defendant's  negligence. 

Section  671a.  Enjoining  judgment;  defense  available  at  law; 
general  rule— A  court  of  equity  will  not  grant  relief  by  injunc- 
tion against  a  judgment  on  the  ground  of  matters  which  were 
available,  in  the  action  at  law  in  which  the  judgment  was  ren- 
dered, as  a  defense  thereto.1    So  in  a  recent  case  in  Rhode  Island 

1     United     Stotes.-Tornvkin*     v.  tfarwas.-Howard  v.  Eddy,  56  Kan. 

Drennen,  56  Fed.  694,  6  C.  C.  A.  83.      498,  43  Pac.  1133.  _^ 

4Ja6ama.-K.irby  v.  Kirby,  70  Ala.  Kentucky. -Morzn  v.  Woodward,  8 

B.    Mon.    537;     Morrison's     Exr.    v. 

Fiorida.-Peacock  v.  Feaster    (Fla.      Hart,  2  Bibb.  4,  4  Am.  Dec.  663. 
1906)    42  So    889;  Michel  v.  Sammis,  Lotmiana.-Mahan  v.   Accommoda- 

15  Fla    308  "  tion  Bank'  26  La"  Ann'  34' 

Georaia.-Brown  v.  Wilson,  56  Ga.  Afaine.-Titcomb  v.  Potter,  11  Me. 

218 

"/iiinois.-Carney  v.  Marseilles,  136  Maryland. -Ahem  v.  Fink,  64  Md. 

Ill     401,    26    N.    E.    491;     Scott   v.  161,  3  Atl.  32. 

Whillow    20     111.    310;     Spraker  v.  Massachuset fs.-Saunders ^v .Hunt- 

Bartlett,'  73  111.  App.  522.  ington,  166  Mass    •*  «.*  *  127' 

/ndtana.-Burke     v.     Pinnell,     93  Barker  v.  Walah,  14  Allen,  172. 

Ind.  540. 

983 


§  67lb        Against  Judgments;   Defenses  at  Law. 

it  was  decided  that  there  is  no  equity  in  a  bill  to  restrain  the 
enforcement  of  a  judgment  where  the  reasons  assigned  therein 
for  such  relief  were  available  to  the  complainant  in  the  original 
suit  of  trover  or  in  the  action  of  debt  on  the  judgment  and  there 
is  no  adequate  reason  assigned  for  his  neglect  to  urge  these  de- 
fenses at  the  proper  time.2  So  to  render  a  want  or  failure  of  con- 
sideration a  ground  for  an  injunction  to  restrain  the  enforcement 
of  a  judgment  it  is  decided  tha.t  it  must  have  been  unavailable  in 
the  action  at  law  as  a  defense  and  that  if  it  was  so  available  the 
injunction  will  not  be  granted.3  But  want  or  failure  of  considera- 
tion is  aground  for  an  injunction  against  a  judgment  where  such 
defense  was  not  available  in  the  action  at  law  or  defendant  was 
prevented  by  fraud  of  plaintiff  from  availing  himself  thereof.* 

§  671b.  Same  subject  continued. — As  a  general  rula  it  is  no 
ground  for  granting  an  injunction  against  a  judgment  that  the 
claim  of  the  plaintiff  upon  which  the  judgment  was  founded  was 
not  sufficient  to  support  it  as  this  is  a  matter  which  should  have 


Minnesota. — Fowler  v.  Atkinson,  6 
Minn.  503. 

Nebraska. — Smith  v.  Asliton,  14 
Neb.  426,  16  N.  VV.  434. 

New  Jersey. — Phillips  v.  Pullen,  45 
N.  J.  Eq.  5,  16  Atl.  9. 

Tennessee. — Estis  v.  Patton,  3 
Yerg.  382. 

Texas. — Bailey  v.  Boystun  (Civ. 
App.),  23  S.  W.  281. 

Virginia. — Farmers'  Bank  v.  Van- 
meter.    4   Rand.    553. 

Washington. — Wingard  v.  Jame- 
son, 2  Wash.  T.  402,  7  Pac.  863. 

West  Virginia. — Black  v.  Smith,  13 
W.  Va.  780. 

2.  Tyrrell  v.  Wood  (R.  I.  1908),  68 
Atl.  545. 

3.  Alabama. — Howell  v.  Motes,  54 
Ala.  1;  Isbell  v.  Morris,  1  Stew.  & 
P.  31. 

Georgia.— Allen  v.  Thornton,  51 
Ga.  594. 


Indiana. — Ricker   v.   Piatt,   48   Ind. 
73;   Hardy  v.  Stone,  23  Ind.  597. 

Louisiana. — Butman  v.  Forshay,  21 
La.  Ann.  165. 

Wisconsin. — Marsh    v.    Edgerton,    1 
Chand.   198,  2  Pin.  230. 

4.  United  Btates.— Skillern  v.  May, 
4  Cranch,  137,  2  L.  Ed.  574. 

Alabama. — McMillion     v.     Pigg,    S 
Stew.  165. 

Arkansas. — Pelham     v.     Floyd,     9 
Ark.  530. 

Georgia.— Odell    v.    Reed,    54    Ga. 
142. 

Indiana. — Gillett   v.   Sullivan,     127 
Ind.  327,  26  N.  E.  827. 

Kentucky. — Waters  v.  Mattingly,  1  ( 
Bibb.  244,  4  Am.  Dec.  631. 

ilissouri. — Bassett     v.     Henry,    34 
Mo.  App.  548. 

West  Virginia. — Vanscoy         v. 

Stinchcomb,  29  W.  Va.  263,  11  S.  E. 
927. 


984 


Against  Judgments;  Defenses  at  Law. 


671b 


set  up  as  a  defense  to  the  action  at  law.5  This  principle  has  been 
applied  in  the  case  of  a  judgment  against  a  garnishee  who  alleges 
merely  that  he  owes  nothing  to  the  principal  defendant;6  where 
it  is  claimed  that  the  judgment  in  a  foreclosure  suit  embraces  sums 
not  due,7  and  where  it  is  alleged  that  there  was  usury  in  the  note 
upon  which  a  judgment  was  rendered.8  And  as  a  general  rule  the 
payment  or  discharge  of  the  claim  upon  which  the  judgment  is 
founded  is  no  ground  for  an  injunction  against  its  enforcement, 
as  this  is  a  matter  of  defense  which  should  have  been  set  up  in 
the  action  at  law.9  And  where  payment  of  a  judgment  could  have 
been  set  up  as  a  defense  to  an  action  at  law  on  the  judgment,  the 
enforcement  of  such  judgment  will  not  be  enjoined.10  Where,  how- 
ever it  appears  that  the  fact  of  payment  or  satisfaction  could  not 
have  been  set  up  as  a  defense  in  the  action  in  which  the  judgment 
was  rendered,  it  has  been  decided  that  the  enforcement  of  such 
judgment  may  be  enjoined.11 


5.  Alabama. — Chandler     v.     Craw- 
lord,  7  Ala.  506. 

Georgia. — Gibson  v.  Cohen,  85  Ga. 
850,  11  S.  E.  141. 

Indiana. — De  Haven  v.   Covalt,   83 
Ind.  344. 

Kentucky.— Thompson   v.    Ware,    8 
B.  Mon.  26. 

Louisiana.— Sartorius     v.     Dawson, 
13  La.  Ann.  111. 

Mississippi. — Fanning    v.    Farmers 
&  Merchants'  Bank,  8  Sm.  4  M.  139. 

Neio  York.— See  Young  v.  Bearda- 
ley,  11  Paige,  93. 

North  Carolina. — Peace     v.     Nail- 
ing, 16  N.  C.  89. 

6.  Kilson  v.  Cohen,  85  Ga.  850,  11 
S.  E.  141. 

7.  De  Haven  v.  Covalt,  83  Ind.  344. 

8.  Thompson  v.  Ware,   8  B.  Mon. 
(Ky.)   26. 

9.  United  States. — Gear  v.  Parish, 
5  How.  168,  12  L.  Ed.  100. 

Illinois.— See  Finley  v.  Thayer,  42 
111.  350. 


Maryland. — Hall  v.  McCann,  51 
Md.  345. 

Tennessee. — Palmer  v.  Malone,  1 
Heisk.  549. 

Texas. — Alexander  v.  Baylor,  20 
Tex.  560. 

10.  District  of  Columbia. — Rider 
v.  Morsell,  3  MacA.   (D.  C.)   186. 

Illinois. — Harding  v.  Hawkins,  141 
111.  572,  31  N.  E.  307,  33  Am.  St.  Rep. 
347. 

Indiana. — Hunt  v.  Lane,  9  Ind.  248. 

Maryland. — Webster  v.  Hardesty, 
28  Md.  592. 

Mississippi. — Nevit  v.  Hamer,  5 
Sm.  &  M.   (Miss.)    145. 

Missouri. — Yautis  v.  Burdett,  4 
Mo.  4. 

New  York. — Gardner  v.  Lee  &  Co.'s 
Bank,  11  Barb.  (N.  Y.)  558. 

South  Carolina. — Sullivan  v.  Shell, 
36  S.  C.  578,  15  S.  E.  722,  31  Am. 
St.  Rep.  894. 

11.  Hawkins  v.  Harding,  37  111. 
App.  564. 


985 


§672  Against   .J  i  ik.mf.nts  ;    Diiknsks   at    Law. 

§  672.  Enjoining  judgment  where  defense  not  available  at 
law. — A  court  of  equity  will  not  enjoin  the  enforcement  of  a  judg- 
ment, except  upon  some  distinct  equitable  ground  which  neither 
was  nor  could  have  been  set  up  as  a  defense  to  the  action  at  law. 
Where  parties  have  had  their  day  in  court,  they  must  abide  the 
result,  as  an  issue  once  tried  in  a  court  of  law  is  nevt  r  retried  by 
a  court  of  equity.12  But  equity  will  restrain  proceedings  upon 
a  verdict,  or  the  collection  of  a  judgment  where  it  is  made  to 
appear,  by  facts  of  which  the  party  could  not  avail  himself  as  a 
defense  because  they  occurred  after  verdict,  that  the  enforcement 
of  the  judgment  would  be  contrary  to  equity  and  good  conscience.13 
So  an  insolvent  debtor,  who  has  had  no  opportunity  to  plead  his 
final  discharge  under  the  insolvent  law,  may  enjoin  his  judgment 
creditor  and  the  sheriff  from  proceeding  with  the  execution  under 
the  judgment.14  And  when,  through  false  representations  to  the 
county  judge,  an  entire  claim  against  a  decedent's  estate  was 
allowed,  in  the  absence  of  the  administrator,  and  without  notice 
to  him,  and  he  did  not  learn  of  the  allowance  until  after  the  time 


12.  Bachelder  v.  Bean,  7G  Me.  370. 
See  §§  671a,  671b,  herein. 

13.  New  York,  etc.,  R.  Co.  v.  Haws, 
56  N.  Y.  175,  per  Grover,  J.:  "The 
plaintiff  could  not  set  up  this  demand 
of  the  money  by  Mallady  as  a  defense 
to  the  action  brought  by  Haws,  be* 
cause  the  fact  did  not  occur  until  af- 
ter the  verdict  was  rendered.  The 
plaintiff  was  therefore  guilty  of  no 
neglect  or  laches  in  not  setting  up 
that  defense — facts  after  the  verdict 
occurred,  rendering  the  plaintiff  lia- 
ble to  deliver  the  identical  money  to 
Mallady  for  which  Haws  had  recov- 
ered a  verdict,  payment  of  which  to 
Haws  would  have  been  no  defense  to 
the  claim  of  Mallady.  This  consti- 
tutes the  plaintiff's  equity  to  restrain 
Haws  from  enforcing  his  claim." 
And  see  North  Chicago  Rolling  Mill 
Co.  v.  St.  Louis  Ore  &  Steel  Co.,  152 
U.  S.  596,  14  S.  Ct.  710. 


14.  Starr  v.  Heckart,  32  Md.  272; 
Carrington  v  Holahird,  17  Sonn.  530, 
538.  But  see  Katz  v.  Moore,  13  Md. 
566,  where  it  is  held  that  execution 
will  not  be  sustained  on  the  ground 
that  the  debtor  had  been  discharged 
under  the  insolvent  law  prior  to  the 
judgment.  The  audita  querela  was 
an  equitable  action  invented  for  the 
purpose  of  relieving  a  defendant 
against  a  judgment  or  execution, 
where  he  had  a  good  defense  but  no 
opportunity  of  making  it;  but  this 
equitable  action  gave  way  to  the  sum- 
mary remedy  by  motion.  Job  v.  Wal- 
ker, 3  Md.  129;  Smock  v.  Dade,  5 
Rand.  (Va.)  639;  Lister  v.  Mundell, 
1  Bos.  &  Pul.  428. 

Compare  Saunders  v.  Huntington, 
166  Mass.  96,  44  N.  E.  127,  holding 
otherwise  where  the  defense  could 
have  been  set  up  in  the  action  at  law. 


986 


Against  Judgments;  Defenses  at  Law. 


673 


for  appeal  had  elapsed,  and  had  a  good  defense  to  a  part  of  it,  he 
was  held  entitled  to  enjoin  the  enforcement  of  the  allowance.15 

§  673.  Judgments  enjoined  only  on  equitable  grounds. — 
Where  a  court  of  equity  proceeds  to  enjoin  a  judgment  at  law,  it 
does  so  only  on  equitable  considerations.  If  the  judgment  is  not 
inequitable  as  between  the  parties,  however  irregular  the  proceed- 
ings may  have  been,  equity  will  not  prevent  its  enforcement.16 
So  the  collection  of  a  judgment  at  law,  fairly  and  regularly  recov- 
ered by  a  purchaser  in  good  faith  for  full  value  against  a  school 
district  on  its  treasury  warrants,  will  not  be  enjoined,  even  if 
there  was  a  good  legal  defense  to  the  action,  when  the  considera- 
tion was  received  and  is  still  being  enjoyed,  and  the  district  officers 
declined  to  interpose  technical  defenses  because  of  the  moral  obli- 
gation to  pay.17     And  an  injunction  will  not  lie  to  restrain  the 


15.  Dundas  v.  Crisman,  25  Neb. 
495,  41  N.  W.  449. 

16.  Hartford  Fire  Ins.  Co.  v. 
Meyer,  30  Neb.  135,  46  N.  W.  292,  per 
Maxwell,  J.:  "It  must  appear  that 
on  a  re-examination  and  retrial  of 
the  cause,  the  result  would  probably 
be  different.  Bradley  v.  Richardson, 
23  Vt.  720;  Tomkins  v.  Tomkins,  11 
N.  J.  Eq.  512;  Reeves  v.  Cooper,  12 
N.  J.  Eq.  223;  Dawson  v.  Merchants 
Bank,  30  Ga.  664;  Saunders  v.  Al- 
britton,  37  Ala.  716;  Way  v.  Lamb, 
15  Iowa,  79;  Stokes  v.  Knarr,  11 
Wis.  389;  Sauer  v.  Kansas,  69  Mo. 
46;  Lemon  v.  Sweeney,  6  111.  App. 
507.  Plaintiff  and  defendant,  attor- 
neys, agreed  to  defend  a  township  in 
suits  against  it  on  its  bonds,  on  con- 
dition that,  if  at  any  time,  the  bonds 
were  adjudged  valid,  the  fee  was  to 
be  refunded.  A  judgment  was  ren- 
dered declaring  the  bonds  invalid,  and 
plaintiff  collected  the  fee,  but  refused 
to  pay  defendant  any  part  of  it.  In 
a  suit  by  the  latter  for  his  half  of  the 
fee,  the  plaintiff  set  up  his  liability 


to  return  the  money  in  case  the 
bonds  were  held  valid  on  appeal, 
which  defense  was  disallowed  and  de- 
fendant obtained  judgment.  After- 
wards the  United  States  Supreme 
Court  held  the  bonds  valid.  Held, 
that  the  enforcement  of  the  judgment 
against  plaintiff  would  be  uncon- 
scionable, and  he  could  enjoin  its  ex- 
ecution. Bassett  v.  Henry,  34  Mo. 
App.  548." 

17.  Skirving  v.  Nat.  Life  Ins.  Co., 
59  Fed.  742,  per  Caldwell,  J.: 
"  Where  it  was  sought  to  enjoin  a 
county  from  paying  county  orders,  is- 
sued for  a  claim  less  meritorious  than 
the  claim  upon  which  this  judgment 
was  rendered,  the  Supreme  Court  of 
Ohio  said :  '  This  court  ought  not  to 
interpose  by  injunction  to  save  the 
county  from  the  payment  of  a  de- 
mand having  the  sanction  of  moral 
obligation.'  Commissioners  v.  Hunt, 
5  Ohio  St.  488;  Newcomb  v.  Horton, 
18  Wis.  566.  Certainly,  after  a  judg- 
ment has  been  regularly  obtained 
upon  such  a  demand,  it  would  be  con- 


987 


§  674  Against  Judgments  ;  Defenses  at  Law. 

collection  of  a  judgment,  whatever  the  misconduct  of  the  prevail- 
ing party,  unless  it  affirmatively  appears  that  the  judgment  itself 
was  wrong,  so  that  it  would  be  against  good  conscience  to  have  it 
enforced.18 


§  674.  Equitable  defense  as  ground  for  injunction. — "Where 
the  matter  alleged  as  the  ground  for  an  injunction  was  purely  an 
equitable  defense  of  which  the  defendant  could  nol  avail  himself 
in  the  action  at  law,  it  is  then  decided  that  an  injunction  against 
the  enforcement  of  the  judgment  may  be  granted.11  So  where 
an  agent,  who  has  loaned  money  for  a  guardian,  and  taken  a  deed 
of  trust  as  security,  agrees  with  the  purchasers  of  a  portion  of 


trary  to  any  man's  sense  of  equity 
and  good  conscience  to  enjoin  its  col 
lection  upon  the  complaint  of  a  sin- 
gle discontented  taxpayer.  The  ap- 
pellant cites  and  relies  on  Cranipton 
v.  Zabriskie,  101  U.  S.  601,  26  L.  11 
1070,  but  that  case  is  not  in  point. 
That  was  a  suit  '  brought  by  other 
taxpayers  of  the  county  to  compel 
the  board  to  reconvey  the  land  and 
Crampton  to  return  the  bonds,  and 
enjoin  the  prosecution  of  the  action 
to  enforce  their  payment.'  It  will  be 
observed  that  no  judgment  had  been 
recovered  in  that  case,  and  the  bill 
was  filed  to  compel  the  board  to  re- 
convey  the  land  which  was  the  con- 
sideration for  the  bonds  upon  which 
suit  had  been  brought.  The  bill  did 
not  seek  to  keep  the  consideration  re- 
ceived for  the  bonds,  and  repudiate 
the  bonds,  but  its  object  was  to  can- 
cel the  contract,  return  the  considera- 
tion received  for  the  bonds,  and  then 
cancel  them.  In  this  suit  the  appel- 
lant seeks  to  have  the  school  district 
keep  the  consideration  it  received  for 
the  orders,  and  to  enjoin,  at  his  own 
suit,  the  payment  of  the  judgment 
rendered  upon  the  orders." 

18.  Poor  v.  Tuston,  53  Kan.  86,  35 


Pac.  792.  per  Allen,  J.:  "The  case 
mi  Ml  i"i-  hearing  on  September  11, 
L8&9  ;,t  Chapman.  The  attorneys 
agreed  to  continue  it  until  October  6, 
.it  Herrington,  and  forwarded  the 
agreement  by  mail  to  the  justice  at 
Chapman,  At  the  time  the  case  was 
set  for  hearing,  the  plaintiff  ap- 
peared and  took  judgment.  The  stip- 
ulation to  continue  did  not  reach  the 
justice  until  the  next  day.  The  peti- 
tion for  injunction  in  this  case  is  fa- 
tally defective  because  it  fails  to 
show,  even  by  the  most  strained  in- 
ference, that  the  plaintiffs  had  a 
valid  defense  in  the  action  before  the 
justice.  Muse  v.  Wafer,  29  Kan. 
279.  And  see  Railway  Company  v. 
Simpson,   11   Kan.  494." 

19.  United  States. — Johnson  v. 
Christian,  128  U.  S.  374,  9  S.  Ct.  87, 
32  L.  Ed.  412;  Hawkins  v.  Mills,  49 
Fed.  506,  1  C.  C.  A.  339. 

Georgia. — Fannin  v.  Thomasson,  45 
Ga.  533. 

Illinois.— Weaver  v.  Poyer,  79  111. 
417. 

New  Jersey. — Sanders  v.  Wagner, 
32  N.  J.  Eq.  506. 

Tennessee. — Newborn  v.  Glass,  5 
Humph.   520. 


988 


Against  Judgments  ;  Defenses  at  Law.  §  675 

the  land  covered  by  the  deed,  that  upon  payment  to  him  or  the 
guardian  he  will  release  the  trust  deed,  equity  will  enjoin  a  judg- 
ment in  ejectment  recovered  by  the  ward,  after  coming  of  age, 
on  a  title  acquired  by  purchase  under  the  trust  deed,  the  above 
agreement  constituting  an  equitable  defense,  which  could  not  have 
been  set  up  at  law.20 

§  675.  Bills  for  new  trials. — A  bill  for  a  new  trial  is  watched 
by  equity  with  extreme  jealousy,  and  will  not  be  entertained  ex- 
cept where  the  complainant  could  not  make  his  defense  at  law,  as 
in  the  case  of  complicated  accounts;  or  where  the  adverse  party 
has  obtained  a  verdict  by  means  of  fraud,  or  has  improperly  got 
possession  of  something  which  gave  him  an  unconscionable  ad- 
vantage at  law.21  Under  the  constitutional  and  Code  provision 
that  no  fact  tried  by  a  jury  shall  be  retried  except  at  common  law; 
and  declaring  that  no  more  than  one  new  trial  shall  be  granted  by 
a  justice  in  any  case,  it  is  decided  that  equity  cannot  enjoin  and 
reverse  a  judgment  rendered  on  a  verdict  in  the  second  trial  of  a 
cause  in  a  justice's  court,  the  issue  being  one  of  law  and  fact, 
namely,  whether  a  judgment  pleaded  by  the  defendant  as  a  set-off, 
was  assigned  to  him  only  colorably,  to  defeat  plaintiff's  exemp- 
tions.22 Until  the  practice  of  granting  new  trials  in  courts  of  law 
was  introduced,  there  was  often  good  reason  why  the  enforcement 

20.  Johnson  v.  Christian,  128  U.  30  W.  Va.  532,  542,  4  S.  E.  782; 
S.  374,  9  S.  Ct.  84,  32  L.  Ed.  412,  per  Slack  v.  Wood,  9  Gratt.  (Va.)  40; 
Lamar,  J.:  "  There  is  nothing  in  the  Allen  v.  Hamilton,  9  Gratt.  (Va.) 
case  to  except  it  from  the  general  257;  Alford  v.  Moore,  15  W.  Va.  597. 
rule  that  in  the  United  States  courts  22.  Ensign  Mfg.  Co.  v.  Carroll.  30 
a  recovery  in  ejectment  can  be  had  W.  Va.  532,  4  S.  E.  782,  per  Woods, 
upon  the  strict  legal  title  only,  and  J.:  "The  circumstances  bring  this 
that  a  court  of  law  will  not  uphold  case  precisely  within  the  rulings  of 
or  enforce  an  equitable  title  to  land  this  court  in  Barlow  v.  Daniels,  25 
as  a  defense  in  such  action.  Bagnell  W.  Va.  512;  Hickman  v.  Baltimore 
v.  Broderick,  13  Pet.  436.  450,  10  L.  &  O.  R.  Co.,  30  W.  Va.  296,  4  S.  E. 
Ed.  235;  Hooper  v.  Scheimer,  23  654,  7  S.  E.  455;  Fouse  v.  Vander- 
How.  235,  16  L.  Ed.  452;  Foster  v.  vort,  30  W.  Va.  327,  4  S.  E.  298. 
Mora.  98  U.  S.  425,  25  L.  Ed.  191;  ...  In  regard  to  civil  suits  be- 
Langdon  v.  Sherwood,  124  U.  S.  74,  fore  a  justice,  the  inhibition  con- 
85    8  S.  Ct.  429,  31  L.  Ed.  344."  tained    in    the    Constitution    as    con- 

21.  Ensign  Manfg.  Co.  v.  Carroll.  strued  by  this  court  in  the  cases  just 

989 


§670 


Against  Judgments;  Defensxb  at  Law. 


of  judgments  at  law  should  be  enjoined,  but  as  new  trials  are  now 
quite  freely  accorded,  a  resort  to  injunctive  relief  from  judgments 
is  not  so  often  necessary.23 

§  67G.  Same  subject;  new  evidence. — A  court  of  equity  will 
entertain  a  suit  to  enjoin  the  enforcement  of  a  judgment  at  law, 
and  t<»  afford  a  new  trial,  when  the  bill  alleges  that  the  judgment 
was  obtained  by  the  use  of  a  forged  letter  as  evidence;  that  com- 
plainant was  ignorant  of  the  existence  of  such  evidence;  before 
the  trial,  and  did  not  discover  its  falsity  until  after  the  rendition 
of  judgment  and  the  lapse  of  the  time  in  which  a  motion  for  in  w 
trial  could  have  been  made;  and  that  she  was  guilty  of  no  laches 
in  failing  to  show  or  discover  the  forgery  of  the  letter.2* 


cited  necessarily  precludes  any  other 
court  from  retrying  the  matter  deter- 
mined in  the  trial  before  the  justice; 
nor  will  a  party  to  any  such  ended 
controversy  be  permitted  by  any 
change  in  the  form  of  bis  remedy,  or 
of  the  character  of  the  forum  to 
which  he  resorts,  to  retry  the  cause 
or  review  the  conclusions  of  law  or 
fact  so  settled.  Meeke  v.  YYindon, 
10  W.  Va.  ISO.  If  a  court  of  equity 
can  review,  retry  and  reverse  BUch  a 
judgment,  upon  the  same  matters  of 
law  and  fact  therein  decided,  then 
said  constitutional  and  statutory  pro- 
hibitions as  well  as  the  construction 
placed  thereon  by  the  court,  would 
become   nugatory." 

23.  Crim  v.  Handley,  04  U.  S.  652, 
658,  24  L.  Ed.  216;  Railroad  Com- 
pany v.  Neal.  1  Wood,  353.  In  Rat- 
liff  v.  Stretch,  130  Ind.  282,  30  N. 
E.  30,  Miller,  J.,  said :  "  The  liberal 
provisions  of  our  code,  by  which  both 
legal  and  equitable  defenses  may  be 
interposed  on  a  trial,  and  new  trials 
granted  for  misconduct  of  the  jury  or 
prevailing  party,  or  on  account  of  ac- 
cident or  surprise,  have  by  affording 
an  equally  efficient  and  more  expedi- 


tious method  of  affording  relief, 
greatly  abridged  the  province  of 
equity  in  granting  relief  by  injunc- 
tion." 

24.  Marshall  v.  Holmes,  141  U.  B. 
589,  12  S.  Ct  82,  35  L.  Ed.  870,  per 
Harlan,  J.:  "While  as  a  general 
rule  a  defense  cannot  be  set  up  in 
equity  which  has  been  fully  and 
fairly  tried  at  law,  and  though  in 
view  of  the  large  powers  now  exer- 
cised by  courts  of  law  over  their 
judgments,  a  court  of  the  United 
States  sitting  in  equity  will  not  as- 
sume to  control  such  judgments  for 
the  purpose  simply  of  giving  a  new 
trial,  it  is  the  settled  doctrine  that 
any  fact  which  clearly  proves  it  to 
be  against  conscience  to  execute  a 
judgment,  and  of  which  the  injured 
party  could  not  have  availed  himself 
in  a  court  of  law,  or  of  which  he 
might  have  availed  himself  at  law 
but  was  prevented  by  fraud  or  acci- 
dent, unmixed  with  any  fault  or  neg- 
ligence in  himself  or  his  agents,  will 
justify  an  application  to  a  court  of 
chancery."  Metcalf  v.  Williams,  104 
U.  S.  93,  96,  26  L.  Ed.  665;  Embry 
v.  Palmer,  107  U.  S.  3,  2  S.  Ct.  25. 


990 


Against  Judgments;  Defenses  at  Law.       §j 


677,  678 


§  677.  Defense  essential  though  judgment  erroneous. — In  the 
absence  of  a  showing  of  meritorious  defense,  a  court  of  equity 
will  not  enjoin  the  execution  of  a  judgment  on  the  ground  of  some 
error  or  irregularity  on  the  part  of  the  law  court,  and  especially 
where  the  error  was  partly  caused  by  the  oversight  of  the  com- 
plainant's attorney.25  So  a  garnishee  against  whom  a  judgment 
has  been  obtained,  is  not  entitled  to  injunction  to  restrain  the 
execution  thereof,  on  a  petition  averring  that  he  owes  the  principal 
defendant  nothing,  and  that  the  judgment  is  erroneous.25 

§678.  Same  subject;  meritorious  defense. — It  is  a  genera* 
rule  that  an  injunction  restraining  the  enforcement  of  a  judgment 
will  not  be  granted  unless  the  defendant  can  show  that  he  has  a 
meritorious  defense  to  the  action  in  which  the  judgment  was  ren- 


27  L.  Ed.  346;  Knox  County  v. 
Harshman,  133  U.  S.  152,  10  S.  Ct. 
257,  33  L.  Ed.  586;  Floyd  v.  Jayne, 
6  Johns.  Ch.  (N.  Y.)  479,  482.  See, 
also,  United  States  v.  Throckmorton, 
98  U.  S.  61,  65,  25  L.  Ed.  93. 

25.  Stout  v.  Slocum,  52  N.  J.  Eq. 
88,  28  Atl.  7,  per  Bird,  V.  C: 
"  There  is  not  a  single  fact  in  the 
bill  to  lead  the  mind  of  the  court  to 
conclude  that  the  judgment  of  the 
common  pleas  was  wrong,  or  that  it 
would  be  against  conscience  to  en- 
force it.  .  .  .  It  certainly  would 
be  an  unheard  of  proceeding  for  this 
court  to  attempt  in  any  particular  to 
review  the  proceedings  of  a  court  of 
law  when  it  has  jurisdiction  of  the 
cause  and  the  parties.  But  it  is  said 
there  was  a  mistake  made  by  the 
circuit  judge  in  remanding  the 
cause  to  the  common  pleas,  instead  of 
allowing  it  to  remain  in  the  circuit. 
I  think  this  is  as  much  a  mistake  or 
oversight  of  the  counsel  for  the  de- 
fendant in  the  cause  as  an  oversight 
or  mistake  on  the  part  of  the  circuit 
judge.  He  made  the  application  for 
the  order,  and  failing,  he  left  it  to 


the  counsel  of  the  other  side  to  pre- 
pare and  present  such  an  order  as  he 
saw  fit.  But  it  is  claimed  that  upon 
reading  the  provisions  of  the  statute, 
and  the  various  orders  of  the  court, 
it  will  appear  that  the  order  signed 
by  the  chief  justice  remanding  the 
cause  to  the  common  pleas  instead  of 
to  the  circuit  was  in  that  particular 
erroneous;  and  that  because  of  that 
error,  the  counsel  of  the  defendant  in 
the  suit  at  law,  was  misled  for  so 
long  a  period  of  time  that  he  was 
deprived,  by  the  strict  rules  of  law, 
of  any  redress.  As  the  case  stands, 
this  leaves  it  for  this  court  to  assume 
that  the  chief  justice  committed  this 
error;  or  if  it  does  not  amount  to 
this,  it  is  an  assumption  that  this 
court  has  the  power  to  review  the  ac- 
tion of  the  chief  justice  in  this  par- 
ticular, and  to  declare  that  the  order 
which  he  signed  was  irregular  and 
unlawful.  I  am  not  aware  that  any 
court  of  equity  has  ever  gone  so  far. 

26.  Gibson  v.  Cohen,  85  Ga.  850, 
11    S.   E.   141. 

See  §§  671a,  671b  herein. 


991 


§679 


Against  Judgments;  Defenses  at  Law. 


dered.27  So  an  injunction  against  a  judgment,  on  the  ground  that 
the  defeated  party  was  misled  as  to  the  time  of  the  adjournment  of 
the  term,  so  that  he  was  prevented  from  obtaining  an  order  giving 
time  after  adjournment  to  make  up  a  statement  of  facts,  should 
not  be  granted  unless  it  appear  that  the  judgment  would  probably 
have  been  reversed  on  appeal,  and  that  he  used  due  diligence  to 
inform  himself  as  to  the  time  of  adjournment.28  In  such  cases,  the 
complainant  must  be  able  to  impeach  the  justice  and  equity  of  the 
verdict  and  judgment  of  which  he  complains,  and  to  show  the  court 
that  there  is  good  ground  to  expect  a  different  result  from  a  new 
trial.28 

§  C79.  Judgment  not  enjoined  where  defense  has  been  tried 
at  law. — It  is  a  general  rule  that  an  injunction  will  not  be  granted 


27.  United  States. — Nelson  v. 
Fir>t  Nat.  Bank,  70  Fed.  526. 

Alabama. — Collier  v.  Parish  (Ala. 
1906),  41   So.  772. 

Arkansas. — Rotan  v.  Springer,  52 
Ark.  80,  12  S.  VV.  156. 

Colorado. — Richardson  Drug  Co.  v. 
Dunagan,  8  Colo.  App.  308,  46  Pac. 
227. 

Delaware. — Emerson  v.  Gray  (Del. 
Ch.   1906),  63  Atl.  768. 

Georgia. — Cardin  v.  Jones,  23  Ga. 
175. 

Illinois.— Ross  v.  Cox,  69  111.  App. 
430. 

Iowa. — Lindberg  v.  Thomas  (Iowa, 
1908),  114  N.  W.  562. 

Kansas. — Muse  v.  Wafer,  29  Kan. 
279. 

Nebraska. — Broken  Bow  v.  Broken 
Bow  W.  Co.,  57  Neb.  548,  77  N.  W. 
1078;  Bankers'  L.  I.  Co.  v.  Robbins, 
53  Neb.  44,  73  N.  W.  269. 

New  Jersey. — Stout  v.  Sloeum.  52 
N.  J.  Eq.  88,  28  Atl.  7;  Davis  v. 
Overseer  of  Poor,  40  N.  J.  Eq.  156. 

Oklahoma — Hockaday  v.  Jones,  8 
OKia.   156,  56  Pac.    1054. 


Texas. — Ratto  v.  Levy  Bros.,  63 
Tex.   278. 

Wisconsin. — Huebschman  v.  Baker, 
7    Wis.   542. 

28.  Ratto  v.  Levy  Bros.,  63  Tex. 
278,  per  Stayton.  J.:  "If  there  was 
a  suflicient  showing  of  diligence  on 
the  part  of  the  appellees  in  the  prose- 
cution of  the  case  in  which  the  judg- 
ment sought  to  be  enjoined  was  ren- 
dered, still  the  petition  fails  to  show 
that  the  result  would  probably  in 
any  manner,  have  been  changed  on 
appeal.  .  .  .  It  is  not  pretended 
that  the  failure  of  the  appellants  to 
take  such  steps  as  they  intended,  re- 
sulted from  any  wrongful  act  of  the 
adverse  parties,  or  by  the  fraud  of 
any  other  person;  and  we  are  of  the 
opinion  when  a  party  litigant  does 
not  take  such  steps  and  seek  such  in- 
formation as  is  within  his  reach  as 
to  the  time  at  which  a  final  adjourn- 
ment of  a  court  takes  place,  that  he 
cannot  make  his  want  of  knowledge 
of  such  fact  a  ground  for  relief." 

29.  Plummer  v.  Power,  29  Tex. 
14;    Burnley   v.   Rice,   21    Tex.    183; 


992 


Against  Judgments;  Defenses  at  Law 


§679 


to  restrain  the  enforcement  of  a  judgment  on  any  grounds  which 
have  been  previously  litigated  between  the  parties  in  the  action  at 
law,30  though  it  may  be  the  opinion  of  the  equity  court  that  the 
defense  ought  to  have  been  sustained  in  the  suit  at  law.si  So  it 
was  said  by  Chancellor  Kent  that  "  the  settled  doctrine  of  the 
court  of  chancery  is  not  to  relieve  against  a  judgment  at  law 
on  the  ground  of  its  being  contrary  to  equity,  unless  the  defend- 
ant below  was  ignorant  of  the  fact  in  question  pending  the  suit, 


Johnson  v.  Templeton,  60  Tex.  239; 
Nevins  v.  McKee,  61  Tex.  412;  Free- 
man v.  Miller.  53  Tex.  377;  Overton 
v.  Blum,  50  Tex.  417;  Roller  v.  Wool- 
dridffe,   46   Tex.   485. 

30.  United  States. — Hendrickson 
v.  Hinckley,  17  Hovr.  443,  15  L.  Ed. 
123;  Pelzer  Mfg.  Co.  v.  Hamburg- 
Brewen  F.  I.  Co.,  71  Fed.  826. 

Georgia. — Parker  v.  King,  43  Ga. 
299. 

Indiana. — Duncan  v.  Lankford,  145 
Ind.  145,  44  N.  E.  12;  Dunn  v.  Fish, 
8  Blackf.  407. 

Kentucky. — Robinson  v.  Gilbreth, 
4    Bibb.    183. 

New  Jersey. — Smalley  v.  Line,  28 
N.  J.  Eq.  348. 

New  York. — Herring  v.  New  York, 
L.  E.  &  W.  R.  Co.,  63  How.  Prac. 
497;  Pacific  Mail  S.  S.  Co.  v.  New 
York,  57  How.   Prac.  511. 

Pennsylvania. — See  Wilson  v.  Bu- 
chanan, 170  Pa.  St.  14.  32  Atl.  620. 

Vermont. — Continental  Life  I.  Co. 
v.  Currier,  58  Vt.  229,  4  Atl.  866. 

Washington. — Cochrane  v.  Van  de 
Vanter,  13  Wash.  323,  43  Pac.  42. 

The  collection  of  a  judgment 
-will  not  be  enjoined  where  all 
qnestions  were  fully  litigated. 
Continental  Life  Ins.  Co.  v.  Cur- 
rier, 58  Vt.  229,  4  Atl.  866.  The  pe- 
titioner obtained  a  decree  for  ali- 
mony against  her  husband,  and  an 
order  for  its  enforcement  against  a 
lot   purchased   by   him,  the   deed  to 


which  had  been  taken  in  the  name 
of  the  respondent  to  defeat  petition- 
er's right  to  support.  In  that  action 
respondent  was  made  a  party.  After- 
wards a  decree  was  entered  under 
which  an  execution  issued,  and  the 
lot  was  levied  on,  and  advertised  for 
sale,  whereupon  the  mother  of  re- 
spondent filed  a  claim  in  forma  pau- 
peris. Upon  petitioner  applying  for 
a  receiver  the  claim  was  withdrawn, 
and  the  lot  again  advertised  for  sale, 
to  prevent  which  respondent  obtained 
a  temporary  restraining  order  on  her 
application,  alleging  that  the  verdict 
and  decree  were  obtained  by  perjury. 
On  final  hearing  an  injunction  was 
refused,  and  an  appeal  from  the  order 
of  refusal  is  still  pending.  Upon  a 
sale  being  again  advertised  respond- 
ent filed  a  claim  in  forma  pauperis, 
which  resulted  in  a  furfher  postpone- 
ment thereof.  Held,  that  respondent 
cannot,  by  an  attempt  to  renew  liti- 
gation in  which  her  rights  were  ad- 
judicated, deprive  petitioner  of  the 
fruits  of  her  decree;  and  an  order 
enjoining  the  further  prosecution  of 
her  claim,  and  for  the  sale  to  pro- 
ceed, was  proper.  Jenkins  v.  Jenkins, 
85  Ga.  208,  11   S.  E.  608. 

31.  Crim  v.  Handley.  94  U.  S.  652, 
658,  24  L.  Ed.  216;  Walker  v.  Rob- 
bins,  14  How.  585,  14  L.  Ed.  552; 
Creath  v.  Sims,  5  How.  204,  12  L. 
Ed.  Ill;  Sample  v.  Barnes,  14  How. 
73,  14  L.  Ed.  330. 


993 


63 


§  G80  Against  Judgments;  Defenses  at  Law. 

or  it  could  not  have  been  received  as  a  defense."  32  Thus  a  judg- 
ment of  another  State,  in  favor  of  an  assignee  of  a  note,  in  an 
action  in  which  the  maker  appeared  and  defended,  is  a  conclusive 
adjudication  that  the  assignee  became  the  owner  of  the  note,  and 
therefore  an  action  on  the  judgment  will  not  be  enjoined  on  the 
allegations  of  a  bill  that  the  assignee  has  falsely  sworn  that  he 
was  the  owner  of  the  note;  that  he,  the  payee,  and  a  third  person 
had  entered  into  a  conspiracy  to  defraud  the  maJcer;  aud  that,  as 
the  maker  learned  after  the  rendition  of  the  judgment,  when 
another  note  given  by  him  to  the  same  payee  became  due,  the 
collateral  given  as  security  for  both  notes,  and  which  was  to  have 
been  surrendered  when  the  second  became  due,  had  been  fraudu- 
lently disposed  of  by  the  payee,  who  was  insolvent;  and  the  judg- 
ment being  the  property  of  the  assignee  of  the  note,  he  can  main- 
tain an  action  on  it  for  the  benefit  of  whomsoever  he  pleases, 
and  it  is  therefore  no  ground  for  an  injunction  that  he  is  main- 
taining it  for  the  benefit  of  the  payee.33 

§  680.  Same  subject. — Where,  in  an  action  to  revive  a  dormant 
judgment,  certain  defenses  were  set  up,  which  tended  to  show  that 
the  court,  when  it  rendered  the  judgment,  had  no  jurisdiction  of 
defendant,  and  that  he  had  a  defense  to  the  action  and  a  demurrer 
to  the  answer  was  sustained,  it  was  held  that  defendant  should  have 
prosecuted  error  from  the  ruling  on  the  answer,  and  that  he  could 
not  bring  an  action  by  injunction  to  enjoin  the  judgment,  and  set 
up  substantially  the  same  facts  as  were  set  forth  in  his  answer.34 
So  a  bill  to  restrain  a  judgment  will  be  dismissed  when  it  appears 
that  every  question  involved  was  litigated  in  the  action  in  which 
the  judgment  was  obtained.35  And  a  court  of  equity  will  not,  on 
the  application  of  the  defendant  in  a  judgment  at  law,  who  has 

32.  Simpson  v.  Hart,  1  Johns.  Ch.  34.  Haynes  v.  Aultman,  Miller  & 
(N.  Y.)   91.     And  see  a  similar  opin-  Co.,  36  Neb.  257,  54  N.  W.  511. 
ion  of  the  court  in   Hendrickson  v.  35.  Amey  v.  Calkins    (N.  J.),   19 
Hinckley,  17  How.  (U.  S.)  445,  15  L.  Atl.  388.     Where  the  defense  to  an 
Ed.  123.  action  on  a  policy  of  fire  insurance  is 

33.  Smedes  v.  Ilsley,  68  Miss.  590,  that  the  title  of  the  insured  passed 
10  So.  75.  to  a  third  person,  who  insured  the 

994 


Against  Judgments;  Defenses  at  Law. 


681 


had  a  fair  opportunity  to  be  heard  upon  a  defense  over  which  the 
court  at  law  had  jurisdiction,  enjoin  the  enforcement  of  the  judg- 
ment simply  on  the  ground  of  its  injustice.36  Again,  where  de- 
fendant was  ably  represented  by  counsel  on  the  trial  of  a  case, 
which  was  fairly  conducted,  the  fact  that  by  mistake  another  of 
his  attorneys,  who  had  cumulative  evidence  in  his  possession,  was 
not  present  at  the  trial,  until  the  case  had  been  submitted  to  the 
jury,  and  that  the  court  thereafter  refused  to  permit  him  to  intro- 
duce such  evidence,  and  denied  his  motion  for  a  new  trial,  will 
not  warrant  the  issuance  of  an  injunction  restraining  the  collec- 
lection  of  the  judgment.37 

§  681.  Facts  showing  defense  must  be  pleaded Where  it  is 

sought  to  enjoin  a  judgment  because  plaintiif  has  a  defense  to 
the  action,  and  it  would  be  inequitable  and  unjust  to  enforce  the 
judgment,  the  facts  constituting  the  alleged  defense  must  be 
pleaded,  and  it  is  not  sufficient  to  merely  allege  that  plaintiff  had 


same  in  his  own  name  and  collected 
for  the  loss,  the  fact  tha«  such  de- 
fense was  rendered  unavailable  by 
the  erroneous  ruling  of  the  court  will 
not  give  a  court  of  chancery  jurisdic- 
tion to  enjoin  the  collection  of  the 
judgment  recovered  in  such  action, 
since  such  defense  is  properly  cogniz- 
able at  law.  Commercial  Union  As- 
sur.  Co.  v.  Scammon,  133  111.  627,  23 
N.  E.  406. 

36.  Phillips  v.  Pullen,  45  N.  J. 
Eq.  5,  16  Atl.  9.  In  this  case  the 
chancellor,  referring  to  the  judgment 
sought  to  be  enjoined,  as  being  ren- 
dered in  the  Circuit  Court  and  af- 
firmed by  the  Court  of  Errors  and 
Appeals,  said:  "That  decision  de- 
termined that  the  complainant's  at- 
torney had  authority  to  make  the 
agreement  sued  upon;  that  the  agree- 
ment did  not  lack  consideration,  and 
that  proof  of  the  fraud,  which  is  here 
alleged,  was  admissible  in  defense  of 
that  suit,  but  that  the  evidence  of 


it  there  offered  and  admitted  was  in- 
adequate to  establish  it.  All  those 
matters  must  now  be  considered  as 
settled  between  the  parties  to  this 
suit.''  And  see  Jones  v.  Davenport, 
45  N.  J.  Eq.  77,  17  Atl.  570;  Le- 
grand  v.  Rixey  Adm'r,  83  Va.  862,  3 
S.  E.  864. 

37.  Appeal  of  Waldo,  135  Pa.  St. 
181,  19  Atl.  1078,  per  Curiam:  "The 
plaintiff  has  had  his  day  in  court. 
He  has  had  his  opportunity  to  be 
heard  and  he  has  not  been  deprived 
of  it  by  any  fraud,  stratagem,  or  de- 
ceit of  his  adversary.  There  can  be  no 
relief  in  equity  where  the  party  has 
had  a  trial  in  which  he  might  have 
availed  himself  of  his  equities.  Wis- 
tar  v.  McManes,  54  Pa.  St.  326 
Eyster's  Appeal,  65  Pa.  St.  475 
Cheyney  v.  Wright,  7  Phila.  431 
Hetzell  v.  Bentz,  8  Phila.  261;  Gor- 
dinier's  Appeal,  89  Pa.  St.  528; 
Frauenthal's  Appeal,  100  Pa.  St.  290; 
Stephens  v.  Stephens,  1  Phila.  108. 


995 


§  t>82  Aqainst  Judgments;  I)i  mnsks  at  Law. 

such  defense.38  So  a  bill  to  enjoin  the  collection  of  a  judgment, 
alleging  simply  that  there  was  a  valid  defense,  of  which  complain- 
ant had  no  knowledge  till  after  judgment,  is  fatally  defective,  as 
not  showing  that  complainant  was  prevented  from  making  his 
defense  by  fraud,  accident,  or  the  act  of  the  opposite  party,  with- 
out fault  on  his  own  part.39  And  a  bill  to  restrain  the  collection 
of  a  judgment  should  show  upon  what  evidence  it  was  rendered  and 
the  grounds  of  complainant's  defense,  and  the  reason,  if  any,  why 
it  was  not  made.*0  And  a  court  of  equity  cannot  enjoin  proceed- 
ings on  a  judgment  at  law  entered  against  the  complainant  on  the 
verdict  of  a  jury  taken  by  the  crier  of  the  court,  where  the  com- 
plainant does  not  allege  any  defense  to  the  proceedings,  although 
he  does  show  an  ineffectual  attempt  to  have  the  judgment  set 
aside  at  law.41 

§  G82.  Diligence  in  learning  of  and  making  defense. — Where 
the  making  of  a  defense  is  prevented  by  fraud  on  the  part  of  the 
plaintiff  an  injunction  against  the  enforcement  of  the  judgment 
obtained  in  such  action  may  be  granted.43  But,  except  in  cases 
of  fraud  or  collusion,  a  judgment  will  not  be  enjoined  unless  it 
clearly  appears  that  to  allow  it  to  be  executed  would  be  contrary 
to  equity  and  good  conscience,  and  that  the  facts  which  render 
it  inequitable  were  unavailable  as  a  defense  in  the  action  at  law, 
without  any  fault  or  negligence  of  the  losing  party."    In  this  con- 

38.  Chicago,  etc.,  R.  Co.  v.  Man-  casca  of  irregularities  in  the  law 
ring,  23  Neb.  552,  37  N.  VV.  462,  per  courts  because  relief  is  not  afTorded 
Maxwell  J.:  "This  is  necessary  in  there,  without  allegations  of  an 
order  that  the  facts  may  be  put  in  equitable  nature,  it  would  in  such 
issue,  and  a  mere  statement  of  a  con-  cases  be  a  court  of  review.  This  court 
elusion  is  not  sufficient  to  authorize  does  not  interfere,  unless  there  is  ex- 
the  granting  of  an  injunction."  hibited   an   equity   which    lies  beyond 

39.  Headley  v.  Bell,  84  Ala.  346,  4  the  reach  of  a  court  of  law.  Cutter 
So.    391 ;    French   v.   Garner,   7   Port.  v.  Kline,  35  N.  J.  Eq.  534." 

(Ala.)    549.  42.   Greenlea   v.   Maher,    Fed.   Caa. 

40.  Buntain  v.  Blackburn,  27  111.  No.  5,779;  Lazarus  v.  McGuirk,  42 
406.  La.  Ann.  194,  8  So.  253;  Buchanan  v. 

41.  Davis  v.  Delaware  Poor  Over-  Griggs,  20  Neb.   165,  29  N.  W.  297; 
seer,  40  N.  J.  Eq.   156,  per  Bird,  V.  Grover  v.  Wyckoff,  27  N.  J.  Eq.  75. 
C:     "  If  this  court  were  to  act  in  all  43.  Crim  v.  Handley,  94  U.  S.  652, 

906 


Against  Judgments  ;  Defenses  at  Law.  §  683 

nection  it  is  decided  that  where,  pending  a  suit  in  the  Federal 
Circuit  Court  against  a  surety,  judgment  was  recovered  against 
him  in  a  State  court  for  the  same  cause  of  action,  and  he  paid  the 
whole  amount  before  judgment  was  rendered  in  the  Circuit  Court, 
and  it  appeared  that  the  latter  court  refused  to  admit  the  defense 
of  antecedent  payment  puis  darrein  continuance,  it  was  held  that 
its  judgment  was  properly  enjoined.44  But  a  judgment  will  not  be 
enjoined  on  the  ground  that  complainant  had  a  defense  to  the 
action  at  law  which  he  did  not  know  of  at  the  time,  if  there  were 
facts  sufficient  to  put  him  on  inquiry  by  which  the  defense  would 
have  been  disclosed.  Thus,  a  bill  to  enjoin  the  collection  of  a  judg- 
ment for  refusing  to  enter  satisfaction  of  a  mortgage,  will  not  lie 
on  the  ground  that  the  mortgagor  had  no  title  to  the  property,  and 
that  such  defense  was  not  known  to  complainant  till  after  judg- 
ment, where  it  appears  that  another  than  the  mortgagor  was  in 
possession  of  the  premises ;  as  such  fact  was  sufficient  to  put  com- 
plainant on  inquiry,  which  would  have  revealed  the  want  of  title.40 

§  683.  Negligence  as  bar  to  injunction. — Where,  without  fraud 
en  plaintiff's  part,  a  defendant  permits  judgment  to  go  against 
him,  by  reason  of  his  misapprehension  of  the  amount  claimed  by 
the  former,  caused  by  his  own  negligence,  he  cannot  maintain  an 
action  to  enjoin  the  enforcement  of  the  judgment  on  showing  that 
he  has  a  meritorious  defense  to  a  part  of  the  claim  for  which  it 
was  rendered,  and  tendering  judgment  for  the  balance.46     And 

659,  24   L.    Ed.    216;     Carrington  v.  judgment    passed,    and    tenders    that 

Holabird,  17  Conn.  537;  Clute  v.  Pot-  part  as  to  which  no  defense  existed, 

ter,  37  Barb.   (N.  Y.)   199;  Burton  v.  it  not  only  fails  to  negative  fault  on 

Wiley,  26  Vt.  432.  the  part  of  complainant  in  respect  of 

44.  Leggett  v.  Humphreys,  21  making  his  defense  in  the  Circuit 
How.  71,  16  L.  Ed.  50;  Humpherys  v.  Court,  but,  to  the  contrary,  affirma- 
Legsett,  9  How.  313,  13  L.  Ed.  145.  tively   shows  that  his   failure  to   de- 

45.  Headley  v.  Bell,  84  Ala.  346,  fend  was  the  result  of  his  own  omis- 
4  So    391  sion,  fault  or  neglect,  and  there  is  an 

46.  Shappey  v.  Hodge  (Ala.),  13  utter  absence  of  averment  of  any 
So.  256,  per  McClellan,  J.:  "The  fraud  or  any  act  on  the  part  of  the 
bill  is  manifestly  without  equity,  plaintiffs  to  which  defendant's  failure 
While  it  alleges  a  meritorious  defense  to  defend  can  be  attributed.  There 
as  to  a  part  of  the  demand  for  which  was,  therefore,  no  error  in  the  decree 

997 


§084 


Against  Judgments;  Dim  etsba  at  Law. 


where  complainant,  being  in  possession  of  land  bought  from  de- 
fendant under  a  bond  for  title  and  having  paid  part  of  the  price, 
discovered  that  defendant  was  only  a  tenant  in  common  of  the  land 
with  four  others,  and  refused  to  pay  the  next  deferred  payment 
note  that  became  due,  and  on  defendant's  recovering  judgment 
against  him  on  the  note,  sued  to  enjoin  its  collection,  alleging  that 
if  tour-fifths  of  the  title  should  lie  lost  to  him,  defendant  was 
financially  unable  to  respond  in  damages,  it  was  held  that  the 
injunction  was  properly  granted,  and  came  within  section  3531 
of  the  Alabama  Code  of  18S<'»,  which  provides  that  on  dissolving 
an  injunction  to  stay  proceedings  on  a  judgment  at  law,  the 
chancellor  must  require  of  the  defendant  a  bond  in  double  the 
amount  of  the  sum  enjoined,  to  refund  the  money  he  may  collect 
ou  the  judgment,  in  case  its  collection  should  be  perpetually  en- 
joined by  the  final  decree.47 

§  684.  Where  defendant  was  ignorant  of  defense  and  not 
negligent. — Where  a  party  had  a  good  defense  to  an  action  at  law 
of  which  defense  he  was  ignorant,  equity  may  on  this  ground  ro- 


of the  chancery  court  sustaining  de- 
murrers to  the  bill,  and  granting  the 
motion  to  dismiss  it  for  the  want  of 
equity.  3  Brick.  Dig.,  p.  347,  §  230, 
ct  seq.;  Noble  v.  Moses,  74  Ala.  604; 
Watts  v.  Frazer,  80  Ala.  186;  Hall 
v.  Pegram,  85  Ala.  522,  5  So.  20!).  6 
So.  612."  See  Caiman  v.  Stuckart,  70 
111.  App.  310. 

47.  Jackson  v.  Elliott,  100  Ala. 
669,  13  So.  690,  per  Stone,  C.  J.: 
"  The  bill  makes  a  case  for  equitable 
relief.  Kelly  v.  Allen,  34  Ala.  663; 
Blanks  v.  Walker,  54  Ala.  117;  Si- 
voly  v.  Scott,  56  Ala.  555;  Lindsey  v. 
Veasy,  62  Ala.  421 ;  Wilkinson  v. 
Searcy,  74  Ala.  243."  As  to  what  the 
effect  would  have  been  on  defendant's 
title  if  he,  as  tenant  in  common,  had 
been  in  individual  possession  of  the 
land  in  question  for  twenty  years, 
and  the  other  tenants  in  common  had 


not  during  that  time  either  taken  or 
claimed  possession,  the  court  cited 
the  following  cases:  McArthur  v. 
Carrie,  32  Ala.  75;  Marston  v.  Rowe, 
39  Ala.  722;  Worley  v.  High,  40  Ala. 
171;  White  v.  Hutchings,  40  Ala. 
253;  McCartney  v.  Bone,  40  Ala.  533; 
Harrison  v.  Heflin,  54  Ala.  552; 
Goodwyn  v.  Baldwin,  59  Ala.  127; 
Barksdale  v.  Garrett,  64  Ala.  277; 
Goodman  v.  Winter,  64  Ala.  410; 
Baker  v.  Prewitt,  64  Ala.  551;  Net- 
tles v.  Nettles,  67  Ala.  599;  Garrett 
v.  Garrett,  69  Ala.  429;  Matthews  v. 
McDade,  72  Ala.  377;  Kelly  v.  Han- 
cock,  75   Ala.   299;    Long  v.   Parmer, 

81  Ala.  384,  1  So.  900;  Solomon 
Heirs  v.  Solomon,  Adm'r,  81  Ala. 
505,   1  So.  82;    Bozeman  v.  Bozeman, 

82  Ala.  389,  2  So.  732;  Davis  v.  Mem- 
phis &  C.  R.  Co.,  87  Ala.  633,  6  So. 
140;   Knabe  v.  Burden,  88  Ala.  436; 


998 


Against  Judgments;  Defenses  at  Law. 


§684 


strain  the  enforcement  of  a  judgment  rendered  in  such  action.48 
So  it  has  been  decided  that  a  judgment  at  law  may  be  enjoined  on 
the  ground  of  a  legal  defense  existing  but  not  made  in  the  action 
at  law,  where  it  was  obtained  by  plaintiff  in  bad  faith,  as  knowing 
that  it  was  contrary  to  fact  and  truth ;  and  where  the  defendant 
neither  knew  the  particular  facts  which  rendered  the  judgment  in- 
equitable, nor  had  such  reason  to  suspect  that  a  fraud  was  being 
practiced  on  him  as  would  have  aroused  the  suspicions  of  a  prudent 
man ;  and  in  such  a  case  the  defendant  will  not  be  barred  from 
injunctive  relief  by  the  fact  that  evidence  of  the  defense  existed  at 
the  time  the  judgment  was  rendered,  and  could  have  been  dis- 
covered by  defendant  if  he  had  then  been  put  upon  inquiry.49    The 


Duncan  v.  Williams,  89  Ala.  341,  7 
So.  416;  Semple  v.  Glenn,  91  Ala. 
245,  6  So.  46,  9  So.  265. 

48.  United  States. — Davis  v.  Tiles- 
ton,  6  How.  114.  12  L.  Ed.  336; 
Swan  v.  United  States  Bank,  Fed. 
Cas.  No.  13,668. 

Arkansas. — Reed  v.  Harvey,  23 
Ark.  44. 

Georgia. — Stroup  v.  Sullivan,  2  Ga. 
275,  46  Am.  Dec.  389. 

Illinois.— Chicago  &  E.  I.  R.  Co.  v. 
Hay,  119  III.  493,  10  N.  E.  29;  Ven- 
num  v.  Davis,  35  111.  568. 

Indiana.— Fitch  v.  Polke,  7  Blackf. 
564. 

Maryland. — Iglehart  v.  Lee,  4  Md. 
Ch.  514. 

Michigan. — Wales  v.  Bank  of  Mich- 
igan, Har.  308. 

Mississippi. — See  Goad  v.  Har,  8 
Sm.  &  M.  787. 

Nebraska. — Radzwiert  v.  Watkins, 
53  Neb.  412,  73  N.  W.  679. 

New  Jersey. — See  Cairo  &  F.  R.  Co. 
v.  Titus,  28  N.  J.  Eq.  269. 

Virginia. — Meeur  v.  Rucker,  10 
Gratt.  506. 

Wisconsin. — Barker  v.  Ruckeyser, 
39  Wis.  590. 


What  constitutes  defense 
arising  after  trial  within  meaning 
of  Missouri  statute,  see  Wilhite  v. 
Ferry,  66  Mo.  App.  453. 

49.  Taylor  v.  Nashville  &  C.  R. 
Co.,  86  Tenn.  228,  6  S.  W.  393.  In 
Reed  v.  Harvey,  23  Ark.  44,  the  court 
held  that  "  the  rule  that  requires  a 
defendant  to  make  his  defense  at  law 
by  the  presentation  of  every  fact  of 
defense  existing  at  the  time  of  trial, 
has  no  application  to  a  case  where 
the  defendant  was  not  privy  to  the 
fact  and  not  have  supposed  to  exist." 
In  Winthrop  v.  Lane,  3  Desaussure, 
310,  the  chancellor  said:  "The  tes- 
timony must  have  been  within  the 
knowledge  of  the  party,  or  he  must 
have  had  some  clue  to  guide  him  in 
his  search,  before  he  can  be  said  to 
have  neglected  the  proper  step  to  ob- 
tain it."  In  Williams  v.  Lee,  3  Atk. 
223,  Lord  Hardwicke  said :  "  As  to 
relief  against  verdicts  for  being  con- 
trary to  equity,  those  cases  are 
where  the  plaintiff  knew  the  fact  of 
his  own  knowledge  to  be  otherwise 
than  what  the  jury  found  by  their 
verdict  and  the  defendant  was  ignor- 
ant of  it  at  the  trial — as  where  the 


999 


g  885 


Against  Judgments;  Dkfknses  at  Law. 


fact,  however,  of  ignorance  of  the  matter  relied  on  is  not  of  r 
sufficient  but  it  must  also  appear  that  the  defendant  in  the  use  of 
ordinary  diligence  could  not  have  acquired  knowledge  thereof.'0 

§  <;s."j.  Judgment  not  enjoined  where  defendant's  attorney 
negligent. — The  negligence  of  the  defendant's  attorney  in  failing 
to  appear  at  the  trial  in  consequence  of  which  the  judgment  was 
entered,  is  not  generally  a  ground  for  an  injunction  to  restrain 
its  enforcement.01  80  the  fact  that  an  attorney  engaged  to  defend 
a  suit  neglects  to  do  so,  is  no  ground  for  enjoining  the  enforcement 
of  a  judgment  against  his  client;  the  only  remedy  of  the  judg- 
ment debtor,  if  he  was  damaged,  is  against  the  attorney.81  And 
a  court  of  equity  will  not  relieve  a  defendant  from  a  judgment  at 
law  obtained  against  him  by  default  because  of  the  failure  of  his 


plaintiff's  action  might  In-  for  a  debt 
and  the  defendant  after  a  verdict  dis- 
covers a  receipt  for  the  very  demand, 
in  the  action  lure  the  court  would  re- 
lieve." Referring  to  these  eases,  Lur- 
ton.  J.,  said,  in  the  case  before  cited 
from  8G  Tenn.  228.  that  they  are 
"  fully  supported  by  Foster  v.  Woods, 

6  Johns.  Ch.  87;  Davis  v.  Tileston.  6 
How.  (U.  S.)  114;  Jameson  v.  De- 
shields,   3   Gratt.   4;    Fitch    v.    Polke, 

7  Blackford  (Ind.),  5G4 ;  Cantey  v. 
Blair,  1  Rich.  Eq.  41;  Gardiner  v. 
Hardey,  12  Gill.  &  J.  365,  381." 

50.  Alabama. — Stinnett  v.  Branch 
Bank,  9  Ala.  120. 

Georgia. — Hill  v.  Harris,  51  Ga. 
628. 

Michigan. — Wixom  v.  Davis,  Walk. 
Ch.  15. 

Missouri. — Bunn  v.  Lindsay,  95 
Mo.  250,  7  S.  W.  473,  6  Am.  St.  Rep. 
48. 

North  Carolina. — Grantham  v. 
Kennedy,  91  N.  C.  148. 

Tennessee. — Bailey  v.  Anderson,  6 
Humph.   149. 

Texas. — Harrison  v.  Cromb,  1  Tex. 
App.,  §  991. 


51.  Hern  v.  Strauslx-rger,  71  111. 
413;  Payton  \.  EdcQuown,  i»7  K\ 
7."-7,  ::i  S.  W.  874,  31  I..  |{.  A.  X>,; 
Amherst  College  v.  Allen.  165  Mas! 
17s.  42  N\  K.  .".To-.  McLaughlin  v. 
Clark,   l    Freem.  Ch.   (Miss.)   385. 

"  Equity  will  not  relieve  against  a 
judgment  at  law  on  account  of  any 
ignorance,  unsUillfulness  or  mistake 
of  the  party's  attorney,  unless 
caused  by  the  opposite  party,  nor  for 
counsel's  negligence  or  inattention. 
The  fault  is  in  such  cases  attributed 
to  the  party  himself.  The  neglect  of 
an  attorney  to  plead  a  valid  and  pro- 
per defense,  or  to  attend  the  trial, 
either  intentionally  or  through  for- 
getfulness,  furnishes  no  ground  for 
relief  against  a  judgment;  neither  is 
it  an  adequate  ground  for  relief  in 
equity  that  the  counsel  neglected  to 
assign  errors,  or  to  take  any  other 
requisite  step  on  an  appeal  or  writ 
of  error  in  the  case."  Peacock  v. 
Feaster  (Fla.  1906),  42  La.  889,  893. 
Per  Taylor,  J. 

52.  Barhorst  v.  Armstrong,  42 
Fed.  2. 


1000 


Against  Judgments;  Defenses  at  Law. 


§685 


attorney  to  file  his  plea  for  him.53  And  a  bill  to  set  aside  a  default 
judgmeut  in  ejectment,  which  alleges  fraud,  but  admits  service 
of  summons,  and  that  complainant  mailed  said  summons  to  an 
attorney  at  the  county  seat,  with  whom  she  had  spoken  about  the 
matter,  but  that  the  attorney  failed  to  appear,  and  that  when  com- 
plainant contrived  to  get  to  town  again,  some  months  after  the 
default,  she  found  that  the  attorney  had  gone  away,  does  not  show 
that  she  was  fraudulently  prevented  from  defending,  nor  that  she 
used  proper  diligence,  and  is  bad  on  demurrer.54     Again,  where 


5.3.  Bardonski    v.    Bardonski,    144 
111.  284,   33  N.   E.  39.      In   Wood  v. 
Lenox   (Tex.),  23  S.  W.  812,  Rainey, 
J.,  said:     "Lenox  attempts  to  excuse 
himself   from   exercising  diligence   on 
the    plea    that     Woods'    counsel    in- 
formed him  some  time  after  the  burn- 
ing    of     the     courthouse     of     Bowie 
county,   in   January,   that  the   papers 
in  the  case  had  been  destroyed  in  the 
fire,    and    that    he     thought    nothing 
would   ever  be  done   in   the   premises. 
It  seems   that   this   information   was 
incorrect,   and    the   papers   were   pro- 
duced   in    court     at    the     April    term 
thereof,   and   given   to  Lenox's  attor- 
ney.    This   was   several   weeks   before 
Lenox   left  for   Europe.      The  counsel 
should  have  looked  after  the  matter, 
and,    if    he    failed,     then    he    is    to 
blame;  and  Lenox,  as  far  as  Woods  is 
concerned,     must     suffer    the     conse- 
quences.      Eddleman    v.    McGlathery, 
74   Tex.    280,    11    S.   W.    1100.      The 
evidence  shows  that  the  statement  of 
Woods'  counsel   about  the  records  be- 
ing burned  was  a  mistake.     But  sup- 
pose it  had  been  tiue,  would  it  have 
excused    Lenox   from    prosecuting   his 
suit?    Certainly  not.    He  had  invoked 
the  aid  of  the  law  to  assist  him  in 
the  collection  of  a  debt.     At  his  in- 
stance it  had  reached  forth  its  strong 
arm,   and   laid   hold   of   property  be- 


longing to  Woods  in  value  exceeding 
double  the  amount  of  his  debt,  for 
the  purpose  of  securing  his  claim. 
He  had  resorted  to  a  harsh  remedy. 
True,  it  is  sanctioned  by  the  law; 
but,  when  resorted  to,  it  is  done  at 
the  peril  of  the  actor,  and  if  he  is  not 
diligent  in  its  prosecution  he  must 
suffer  the  consequences.  If  the  rec- 
ords had  been  destroyed,  the  law  pro- 
vides an  ample  remedy  by  substitu- 
tion, by  which  he  could,  without  much 
delay,  have  pursued  the  collection  of 
his  claim  without  unnecessary  injury 
to  Woods.  If  Lenox  did  not  see  pro- 
per to  look  into  the  matter,  or  did 
not  care  to  substitute  the  lost  record, 
he  could  not  excuse  himself  for  that 
reason,  for  Woods  had  the  right  to 
substitute  the  records;  and  it  is  un- 
reasonable to  suppose  that  they  would 
lie  still  and  await  the  pleasure  of 
Lenox  to  prosecute  the  suit  when 
there  was  property  belonging  to  them 
tied  up  by  the  suit,  in  value  more 
than  double  Lenox's  debt.  Even  if 
they  knew  that  Lenox's  claim  was 
just,  it  would  have  been  to  their  in- 
terest to  have  had  the  matter  settled 
as  soon  as  possible,  that  they  might 
get  the  use  of  the  surplus  fund." 

54.  Hoey  v.  Jackson,  31  Fla.  541, 
13  So.  459. 


1001 


§  GSti  AOAINST   JuDOME.NTS,    DeWEMBMM   AT    LAW. 

three  civil  suits  were  pending  in  the  superior  court,  and  the  defend- 
ant therein  employed  the  attorney  who  brought  the  suits  to  del.  ml 
hi  in  in  a  criminal  case,  and  this  attorney  advised  him  to  remain 
away  from  the  court  eo  that  he  could  not  be  tried  at  that  terra 
in  the  criminal  case,  but  gave  him  no  advice  as  to  the  civil  suits, 
to  which  no  defense  had  bean  filed,  and  the  eourt  Pondered  judg- 
ment therein,  there  was  no  error  in  denying  an  injunction  against 
the  judgment,  on  the  ground  that  the  defendant  was  advised  to  stay 
away  from  the  court  on  account  of  the  criminal  case.  And  it  was 
not  cause  for  an  injunction  that  the  petitioner  had  employed 
counsel  to  defend  the  civil  actions,  and  had  received  a  message 
from  him  that  lie  was  sick,  and  that  all  of  hifl  cases  would  be  con- 
tinual for  the  term,  tho  petition  for  injunction  failing  to  allege 
that  the  message  or  any  part  of  it  wa.s  true."  But  in  a  case  in 
\<  hraska  it  is  decided  that  in  an  action  to  enjoin  a  judgment  on 
the  grounds  that  tho  defendant  baa  a  good  defense,  ami  that  it 
was  rendered  through  a  bleach  of  duty  by  its  attorneys,  the  facts 
constituting  the  alleged  defense  must  be  pleaded,  so  as  to  show 
that  upon  a  retrial  the  result  would  be  different.54 

§  686.  Injunction  barred  by  defendant's  negligence. — In  a 
suit  to  restrain  the  execution  of  a  judgment  and  for  a  new  trial,  it 
appeared  that  plaintiffs  were  notified  by  their  attorney  of  the 
day  set  for  trial  two  days  in  advance;  that  they  wired  him  that  it 
would  be  impossible  to  procure  the  attendance  of  their  witnesses  on 
the  day  named;  that,  receiving  no  response,  they  gave  the  case 
no  further  attention,  either  in  person  or  by  the  attendance  of 
witnesses,  until  after  the  adjournment  of  court,  which  remained 
in  session  two  weeks ;  that  they  could  have  reached  the  court  from 
where  they  lived  within  eighteen  hours.  It  was  held  that  for 
their  negligence,  plaintiffs  were  not  entitled  to  relief.57  To  war- 
rant a  court  of  equity  in  reviewing  a  judgment  and  in  enjoining 
proceedings  thereunder,  the  party  seeking  the  relief  must  show, 

55.  Sasser  v.  Olliff,  91  Ga.  84,  16      Meyer,  30  Neb.  135,  46  N.  W.  292. 

S.  E.  312.  57.  Roots    v.    Cohen     (Miss.),    12 

56.  Hartford     Fire     Ins.     Co.     v.     So.  593. 

1002 


Against  Judgments;  Defenses  at  Law. 


§686 


not  only  that  injustice  has  been  done  him,  but  also  that  he  was 
prevented  from  prosecuting  his  cause  of  action,  or  interposing 
his  defense,  by  fraud,  accident,  or  the  act  of  the  opposing  party, 
wholly  unmixed  with  any  fault  or  negligence  of  his  own;  and 
the  diligence  required  to  be  used  to  prevent  injury  is  such  as 
prudent  and  careful  men  would  ordinarily  use  in  their  own  causes 
of  equal  importance.  And  the  fact  that  a  party  to  a  suit  is  in 
delicate  health,  and  goes  abroad  to  recover,  does  not  excuse  him 
from  making  some  provision  by  which  his  interest  will  be  pro- 
tected, and  is  no  ground  for  a  review  of  a  judgment  obtained 
against  him.58     Absence  of  one  of  the  counsel  employed  to  con- 


58.  Wood  v.  Lenox  (Tex.),  23  S. 
W.  812,  per  Rainey,  J.:  "That  an 
action  may  be  instituted  to  review  a 
judgment  rendered  at  a  former  term 
of  court,  and  to  enjoin  proceedings 
thereunder,  has  been  often  adjudi- 
cated in  this  State;  but,  in  order  to 
invoke  the  equitable  powers  of  the 
court  to  grant  relief  in  such  cases,  it 
is  not  enough  for  the  party  seeking 
relief  to  show  that  irregularities 
were  committed  by  the  court  in  the 
trial  of  the  cause,  and  that  he  has  a 
meritorious  cause  of  action  or  de- 
fense, but  he  must  also  show  that 
something  more  than  injustice  has 
been  done  him.  He  must  show  that  he 
was  prevented  from  prosecuting  his 
cause  of  action,  or  interposing  his  de- 
fense, by  '  fraud,  accident,  or  the 
acts  of  the  opposing  party,  wholly 
unmixed  with  any  fault  or  negligence 
of  his  own.'  In  Johnson  v.  Temple- 
ton,  60  Tex.  238,  the  court,  in  pass- 
ing upon  a  similar  case,  says:  '  Such 
bills  seeking  relief  from  final  judg- 
ments, solemnly  rendered  in  the  due 
and  ordinary  course  of  the  adminis- 
tration of  justice  by  courts  of  com- 
petent jurisdiction,  are  always 
watched  by  courts  of  equity  with  ex- 
treme    jealousy,     and     the     grounds 


upon  which  interference  will  be  al- 
lowed are  confessedly  narrow  and 
restricted.  It  will  not  be  sufficient  to 
show  that  injustice  has  been  done  by 
the  judgment  sought  to  be  enjoined. 
It  must  further  distinctly  and  clearly 
appear  that  this  result  was  not 
caused  by  any  inattention  or  negli- 
gence on  the  part  of  the  person  ag- 
grieved; and  he  must,  among  other 
matters,  show  a  clear  case  of  dili- 
gence and  of  merit  to  obtain  the  in- 
terference of  a  court  of  equity  in  his 
behalf  at  such  a  stage  of  the  case.' 
In  Nevins  v.  McKee,  61  Tex.  413, 
Justice  Willie,  in  discussing  this 
question,  says:  'A  court  of  chan- 
cery has  power  to  grant  such  relief, 
but  it  will  not  do  so  except  upon 
facts  which  show  the  clearest  and 
strongest  reasons  for  its  interposi- 
tion;' citing  Johnson  v.  Templeton, 
supra,  from  which  he  quotes  approv- 
ingly. This  doctrine  is  fully  sup- 
ported by  Roller  v.  Wooldridge,  46 
Tex.  485;  Taylor  v.  Fore,  42  Tex. 
256;  Crawford  v.  Wingfield,  25  Tex. 
416;  Musgrove  v.  Chambers,  12  Tex. 
32;  Weaver  v.  Vandervanter,  84  Tex. 
691,  19  S.  W.  889;  Harn  v.  Phelps, 
65  Tex.  597;  Eddleman  v.  McGlath- 
ery,  74  Tex.  280,  11  S.  W.  1100.    The 


1003 


§C86 


Against  Judgments;  Dkfknsks  at  Law. 


duct  the  defense  in  an  action  at  law,  is  not  ground  for  enjoining 
the  judgment  therein,  where  it  appears  that  if  the  defendant  had 
been  present  at  the  trial  he  might  have  employed  other  counsel 
equally  competent;  nor  is  the  fact  that  a  witness  upon  whom  the 
defendant  relied,  was  so  sick  during  his  examination  aa  to  impair 
his  recollection  of  facts  within  bis  knowledge.  Having  failed  to 
ask  for  a  postponement  or  continuance  of  the  trial,  he  cannot  go 
into  equity  and  have  judgment  enjoined.81  And  it  is  no  ground 
for  an  injunction  against  the  collection  of  a  judgment  at  common 
law,  that  plaint  i iT  possessed  certain  account  books  which  defendant 
was  unable  to  obtain  in  time  to  examine  before  trial,  which  show, 
upon  subsequent  examination,  that  plaintiff,  who  is  insolvent,  is 
indebted  to  defendant  in  an  amount  greater  than  that  of  the  judg- 
ment recovered,  for  he  should  have  obtained  as  much  time  as  ho 
was  entitled  to  for  such  examination  from  the  court,  at  law.60 


diligence  required  to  be  used  to  pre- 
vent the  injury  is  such  as  prudent 
and  careful  men  would  ordinarily  use 
in  their  own  cases  of  equal  import- 
ance. When  this  standard  had  not 
been  reached,  equity  will  give  no  re- 
lief. Taylor  v.  Fore,  supra.  Has 
Lenox  brought  himself  within  the 
rules  above  laid  down?  .  .  .  The 
evidence  of  Lenox  shows  that  he  had 
been  in  delicate  health  for  some  time, 
but  sufficiently  able  to  look  after  this 
case.  Being  able  so  to  do,  he  can- 
not excuse  himself  for  not  making 
some  provision  by  which  his  interest 
could  have  been  protected.  No  wit- 
nesses were  subpoenaed,  no  deposi- 
tions were  taken,  not  even  his  own. 
As  far  as  the  record  shows,  no  ef- 
fort was  made  to  get  an  agreement 
from    opposing    counsel    to    postpone 


the  cause  or  make  any  disposition  of 
it  until  Lenox  could  return.  In  fact 
the  whole  case  seems  to  have  been 
totally  ignored  by  Lenox.  From  an 
examination  of  the  facts,  it  seems  to 
us  that  tin-  plea  of  Lenox  is  wholly 
without  merit  to  entitle  him  to  re- 
cover. There  is  neither  fraud,  acci- 
dent or  mistake  that  shows  any 
equitable  grounds  which  entitle  him 
to  relief  at  the  hand  of  the  court. 
His  injury,  if  any,  was  caused  solely 
by  his  own  negligence.  This  being 
the  case,  he  must  suffer  the  conse- 
quences. The  judgment  of  the  court 
below  is  here  reversed,  and  here  ren- 
dered for  plaintiffs  in  error." 

59.  Crim     v.    Handley,     94   U.   S. 
652,  24  L.  Ed.  216. 

60.  Hines  v.  Beers,  76  Ga.  9. 


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